Sheet Metal Workers Local 66 (Magnolia Contractors)

National Labor Relations Board - Board Decisions

Feb 13, 1995

316 N.L.R.B. 294 (N.L.R.B. 1995)

294
316 NLRB No. 60
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Fisher is a member of United Association of Journeymen and
Apprentices for the Plumbing and Pipe Fitting Industry, Local 598.
2 According to Sexton’s testimony, sometime in November 1993,
the Plumbers claimed the work and told Fisher that it should be as-
signed to the Plumbers.
Sheet Metal Workers Local No. 66, AFL–CIO and
Magnolia Contractors, Inc. and Sound Air, Inc.
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local #32,
AFL–CIO and Magnolia Contractors, Inc. and
Sound Air, Inc.
United Brotherhood of Carpenters and Joiners of
America, Millwrights Local 204, AFL–CIO and
Magnolia Contractors, Inc. and Sound Air, Inc.
and Magnolia Contractors, Inc. and Sound Air,
Inc. Cases 19–CD–468, 19–CD–469, and 19–CD–
470
February 13, 1995
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The charges in this 10(k) proceeding were filed on
July 20, 1994, by the Employers, Magnolia Contrac-
tors, Inc. and Sound Air, Inc., alleging that the Re-
spondents, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local #32, AFL–CIO
(Plumbers), Sheet Metal Workers Local No. 66, AFL–
CIO (Sheet Metal Workers), and United Brotherhood
of Carpenters and Joiners of America, Millwrights
Local 204, AFL–CIO (Millwrights), violated Section
8(b)(4)(D) of the National Labor Relations Act by
threatening, coercing, and restraining Magnolia and
Sound Air for the express purpose of assuring that the
disputed work either remain assigned or be reassigned
to individuals represented by the respective Unions.
The hearing was held on August 8, 1994, before Hear-
ing Officer James R. Kobe.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employers, Magnolia Contractors, Inc. and
Sound Air, Inc., are separate entities and each is a
Washington corporation involved in building and con-
struction in the Seattle, Washington area. The parties
stipulate, and we find, that each Employer is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that Sheet Metal Workers Local 66,
Plumbers Local 32, and Millwrights Local 204 are
labor organizations within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
In August 1991, Magnolia, a mechanical and general
contractor, was awarded the contract to renovate the
existing primary treatment facility at the West Point
Sewage Treatment Plant in Seattle, Washington. The
main purpose of the renovation was the installation of
an odor control system that will prevent foul air from
the raw sewage held in the storage tanks from exiting
into the atmosphere. The project involves the renova-
tion of concrete sedimentation tanks, the modification
of their mechanical equipment, and the installation of
metal covers on the tanks. The tank covers are placed
on support brackets secured to the concrete tank sides.
The covers and support brackets are fabricated by an
offsite supplier. The new odor control system also in-
cludes a foul air extraction system consisting of an air
intake louver installed at one end of each renovated
tank and an aluminum foul air extraction duct connec-
tion installed at the other end.
Magnolia has been performing all of the tank work
with its employees, with the exception of the foul air
extraction duct work, which has been subcontracted to
Sound Air, a heating, ventilation, and air-conditioning
subcontractor. Magnolia assigned the installation of the
tank covers and support brackets to its employees rep-
resented by the Millwrights and it assigned the piping
on one water conveyance system and modification of
the launderers on another water conveyance system to
its employees represented by the Plumbers. Sound Air
assigned its work to its employees represented by the
Sheet Metal Workers.
According to Magnolia’s project superintendent,
Harry Fisher, in May 1994, Bob Giron, a business rep-
resentative of the Plumbers, contacted him and claimed
the work on the tank covers and brackets as well as
the foul air extraction duct work. Fisher testified that
Giron informed him that the Plumbers claimed the
odor control work and described the odor control work
as incorporating the ‘‘covers, the supports, the duct
work, the foul air duct work and so forth.’’
By letter dated June 3, 1994, the Plumbers’ business
manager, Al Sexton, requested Fisher to attend a meet-
ing of the Plumbers’ executive board or risk being
fined.1 At that meeting, Sexton testified that the
Plumbers’ jurisdiction and the installation of the duct
work, tank covers, and supports at the West Point
project were discussed. Sexton testified that he indi-
cated that the Plumbers claimed the work on the cov-
ers and the supports.2 Fisher testified that Sexton told
295SHEET METAL WORKERS LOCAL 66 (MAGNOLIA CONTRACTORS)
3 According to Fisher, at the time Sexton made this statement, the
only part of the disputed work that was being performed at the job-
site was the installation of the support brackets.
4 Despite having entered into this stipulation, the Plumbers, as
noted infra, contend that it is not seeking assignment of the disputed
work.
him that if the installation of the supports by the Mill-
wrights continued, the Plumbers would pull its men off
the project.3 On June 8, 1994, according to Fisher, Bob
Arias, the shop steward for the Plumbers, visited Fish-
er at the jobsite and informed Fisher that he would in-
struct the Plumbers to walk off the project if the Mill-
wrights continued to install the support brackets. Dan
Nordstrom, general manager of Magnolia, testified
that, shortly after the meeting between Arias and Fish-
er, Arias repeated the threat. According to Nordstrom,
Arias told Nordstrom that ‘‘he was instructed to pull
the men’’ if Nordstrom continued to have the Mill-
wrights install the supports. Sexton testified that nei-
ther he nor any of the Plumbers’ stewards or business
agents told Magnolia that the Plumbers would strike or
take economic action because of the dispute. No work
stoppages or picketing occurred at the jobsite.
Nordstrom advised Linda Dupuis-Fricke, president
of Sound Air, to delay starting the job until July 5, and
Sound Air agreed. On or about June 22, 1994, the
Plumbers filed a grievance against Magnolia. Shortly
after the grievance was filed, William Sullivan, the
business agent for the Millwrights, approached Nord-
strom and informed him that the Millwrights would
not allow their work to be taken away. On about July
10, 1994, Nordstrom received a letter from Sullivan
stating that ‘‘if the job assignment changes, [the Mill-
wrights] will take all economic action necessary to
protect [their] job assignment.’’ On July 14, 1994, the
Plumbers demanded arbitration of the grievance. By
letters dated July 18, 1994, Ken Peterson, business
manager of the Sheet Metal Workers, informed Mag-
nolia and Sound Air that the Union would take eco-
nomic action to protect its assignment to complete the
foul air extraction duct work.
B. Work in Dispute
At the hearing, the parties stipulated that the work
in dispute involves all aluminum duct work and duct
work accessories and all work on support brackets and
tank covers at the West Point Treatment Plant. Magno-
lia Contractors, as a general contractor at the Treat-
ment Plant, assigned all work on support brackets and
tank covers. Sound Air, under its subcontract with
Magnolia for the West Point project, assigned all alu-
minum duct work and duct work accessories work. At
the hearing, the parties also stipulated that the Mill-
wrights claim only the support brackets and tank cov-
ers, that the Sheet Metal Workers claim only the duct
work and duct work accessories work, and that the
Plumbers claim both parts of the disputed work.4
C. Contentions of the Parties
The Employers, Magnolia and Sound Air, contend
that each Union has threatened them in an attempt to
influence the assignments of work and that this dispute
is therefore properly before the Board for determina-
tion. The Employers argue that the Unions claim the
work in dispute and that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated based
on the threat by the Plumbers to walk off the job if
the work on the tank covers, support brackets, and the
foul air extraction duct system was not reassigned to
the employees represented by the Plumbers, the threat
by the Millwrights to take economic action if the tank
covers and support bracket work was reassigned to the
Plumbers, and the threat by the Sheet Metal Workers
to take economic action to protect its assignment to
complete the foul air extraction duct system. The Em-
ployers further contend that the current assignments of
the disputed work should be upheld based on the fac-
tors of the Employers’ collective-bargaining agree-
ments, their preference and past practice in making
such assignments, the practice in the industry, the
qualifications and skills of the employees represented
by the Millwrights and Sheet Metal Workers, and
economy and efficiency. Finally, the Employers re-
quest an award of the disputed work that is coexten-
sive with the geographical jurisdiction of the Plumbers,
arguing that the Plumbers will continue to claim the
disputed work on future projects and that the Mill-
wrights and Sheet Metal Workers will also continue to
claim the work and enforce their claims with imper-
missible threats and coercion.
The Plumbers contend that there is no reasonable
cause to believe that they violated Section 8(b)(4)(D)
of the Act because their grievance does not constitute
a claim for the work. The Plumbers contend that this
is a contract action involving that Union and Magnolia
and that the June 1994 grievance and request for arbi-
tration does not constitute coercion within the meaning
of Section 8(b)(4)(D). The Plumbers further contend
that there has been no economic strike, picketing, or
boycott to coerce Magnolia to assign the work. Al-
though the Plumbers acknowledge contradictory evi-
dence in the record regarding illegal threats, the
Plumbers note that these alleged statements were not
accompanied by actual striking or picketing. The
Plumbers further contend that Magnolia has waived its
right to file 8(b)(4)(D) charges by agreeing to alternate
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We find no merit in the Plumbers contention that Magnolia
waived its statutory right to file an 8(b)(4)(D) charge by agreeing
to alternate procedures to settle jurisdictional disputes in its contract
with the Plumbers.
procedures to settle jurisdictional disputes in the col-
lective-bargaining agreement between Magnolia and
the Plumbers. Finally, the Plumbers request, in the al-
ternative, should the Board award the work to a union
other than the Plumbers, that the order not purport to
bar the Plumbers’ right to proceed to arbitration under
its collective-bargaining agreement with Magnolia and
that the award limit itself to the dispute at the West
Point Treatment Plant.
The Sheet Metal Workers and Millwrights contend
that there are competing claims to the disputed work
and that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. In support of this
contention, the Sheet Metal Workers and Millwrights
note that the parties stipulated to competing claims at
the hearing, that the Plumbers’ business manager, a
business representative, and a job steward made state-
ments claiming the work, that the Plumbers’ business
manager and a job steward threatened Magnolia’s
project superintendent with a walk off unless the dis-
puted work was assigned to employees represented by
the Plumbers, and that the Sheet Metal Workers and
the Millwrights threatened economic action if the dis-
puted work was reassigned. The Sheet Metal Workers
and the Millwrights further contend that the Employ-
ers’ assignments should be upheld on the basis of their
collective-bargaining agreements with the Employers,
the Employers’ preference and past practice, area and
industry practice, economy and efficiency, and relative
skills and training. Finally, the Sheet Metal Workers
and the Millwrights request an order coextensive with
the Plumbers’ jurisdiction, arguing that there is no evi-
dence that the Plumbers intend to ease their pressure
on contractors on future sites.
D. Applicability of the Statute
Before the Board may proceed 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) of the Act has been violated
and that there is no agreed-on method for the voluntary
resolution of the dispute.
As discussed above, it is undisputed that the Sheet
Metal Workers and the Millwrights threatened eco-
nomic action against Magnolia and Sound Air in order
to prevent the reassignment of the disputed work. Ac-
cordingly, if there are competing claims to the disputed
work between rival employee groups, there is reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred. As noted above, however, the
Plumbers contend that this is not a jurisdictional dis-
pute because they seeks contractual damages rather
than assignment of the work. We reject this contention.
In addition to filing a grievance and request for arbitra-
tion, the record indicates that representatives of the
Plumbers made oral claims for the disputed work to
Magnolia officials in May and June 1994. Although
the Plumbers’ representative denied making any state-
ments to Magnolia for the purpose of seeking the reas-
signment of the work and testified that the Plumbers’
actions were limited to the filing of the grievance seek-
ing compensation, it is well settled that a conflict in
testimony does not prevent the Board from proceeding
under Section 10(k), because in this type of proceeding
the Board is not charged with finding that a violation
did in fact occur but only that reasonable cause exists
for finding such a violation. Further, notwithstanding
its position, the Plumbers entered into a stipulation at
the hearing claiming the disputed work in its entirety.
Consequently, we conclude that there are active com-
peting claims to disputed work between rival groups of
employees.
At the hearing, the parties stipulated that there is no
agreed-on method for the voluntary adjustment of the
dispute in question that would bind all parties, and that
the dispute in question had not been voluntarily ad-
justed so as to bind all parties.5
Based on our findings above, we find reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred and that there exists no agreed method
for voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly, we
find that the dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The Plumbers’ participation in the hearing in this
matter was limited to the question of whether a juris-
dictional dispute existed and did not extend to the mer-
its of the dispute.
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining
agreements
The parties stipulated at the hearing that there are no
outstanding Board certifications relative to the disputed
work.
297SHEET METAL WORKERS LOCAL 66 (MAGNOLIA CONTRACTORS)
Magnolia has contracts with the Plumbers and the
Millwrights, but it is not a signatory to any contract
with the Sheet Metal Workers. Article I, ‘‘Jurisdiction
of the United Association,’’ of the agreement between
the Plumbers and Magnolia provides 54 specific exam-
ples of work over which the Plumbers have jurisdiction
by virtue of the agreement. The disputed work is not
included within the specific examples. Magnolia’s
agreement with the Millwrights, through reference to
the United Brotherhood’s constitution, covers ‘‘milling,
fashioning, joining, assembling, erection, fastening or
dismantling of all material of wood, plastic, metal,
fiber, cork, and composition, and all other substitute
materials,’’ and the ‘‘[h]andling, cleaning, erecting, in-
stalling and dismantling of machinery, equipment and
all materials used by members of the United Brother-
hood.’’ The installation of support brackets and covers
requires the joining, assembling, erecting, and fasten-
ing of metal materials to concrete and each other, and
is thus covered by the agreement. Sound Air’s agree-
ment with the Sheet Metal Workers specifically covers
the ‘‘manufacture, fabrication, assembling, handling,
erection, installation . . . of all ferrous or nonferrous
metal work and all other materials used in lieu thereof
and of all air-veyor systems and air-handling sys-
tems.’’ The work being performed by the Sheet Metal
Workers is an air-handling system, and is thus covered
by the agreement. Accordingly, we find this factor fa-
vors an award to employees represented by the Mill-
wrights and the Sheet Metal Workers.
2. Company preference and past practice
Magnolia has assigned the work on support brackets
and tank covers to employees represented by the Mill-
wrights and has subcontracted the aluminum duct work
and duct work accessories work to Sound Air. Sound
Air has, in turn, assigned the duct work and duct work
accessories work to employees represented by the
Sheet Metal Workers. Although the factor of company
preference is not determinative, it favors an award to
the Millwrights and Sheet Metal Workers.
Uncontradicted testimony indicates that Magnolia
has never used employees represented by the Plumbers
to perform similar work. Sound Air provided a list of
21 jobs on which it has performed work similar to that
at the West Point Plant with the Sheet Metal Workers.
This factor favors assignment to the Millwrights and
Sheet Metal Workers.
3. Area and industry practice
Uncontradicted testimony at the hearing indicated
that employees represented by the Millwrights have
performed the installation of tank covers and supports
for other contractors in the Seattle area. Sound Air also
presented uncontradicted testimony that the use of em-
ployees represented by the Sheet Metal Workers for
the installation of duct work and duct work accessories
is the industry standard in the Seattle area. There was
evidence of only one project in western Washington
where plumbers performed similar work and the
plumbers were part of a composite crew with sheet
metal workers. This factor, therefore, favors an award
to the Millwrights and the Sheet Metal Workers.
4. Relative skills
Uncontradicted evidence indicates that employees
represented by the Millwrights regularly perform the
job functions and tasks required to install the brackets
and covers and receive extensive training in those
functions and in the use of the tools required to per-
form the task. There is no evidence in the record that
employees represented by the Plumbers have either the
experience or the training needed to perform these
tasks. Undisputed testimony also indicates that employ-
ees represented by the Sheet Metal Workers regularly
perform the installation of duct work and accessories.
The Sheet Metal Workers-represented employees re-
ceive extensive training in the installation of the mate-
rials and in the fabrication of the duct and accessories.
Again, there is no evidence that the Plumbers-rep-
resented employees have similar experience or training.
We find, therefore, that this factor favors an award of
the disputed work to employees represented by the
Millwrights and the Sheet Metal Workers.
5. Economy and efficiency of operations
Nordstrom testified that the Millwrights, unlike the
Plumbers, work throughout the entire length of a tank
cell during the course of other activities they are per-
forming, improving the flow of work during the instal-
lation of the covers, supports, and other mechanisms.
Further, the other mechanisms being installed by the
Millwrights are very close in elevation to the covers
and supports and can be installed simultaneously with
the covers and brackets. The Millwrights also supply
their own tools. Nordstrom also testified that installa-
tion of the tank covers and brackets is intermittent, and
the Millwrights perform other onsite carpentry work
when not required to perform the disputed work. Ac-
cording to Nordstrom, using employees represented by
the Plumbers would require pulling those employees
from other assignments or getting employees for short
duration jobs. Nordstrom testified that for these rea-
sons it was more efficient and economical to use em-
ployees represented by the Millwrights to perform the
disputed work. Finally, under Magnolia’s contract with
the Millwrights, carpenters and millwrights can func-
tion interchangeably, increasing the flexibility in Mag-
nolia’s scheduling.
Dupuis-Fricke testified that she attempts to keep a
constant work force from job to job and to keep em-
ployees with similar skills so that their jobs are inter-
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
changeable. She testified that having a constant work
force instills confidence in the employees because they
know that every person with whom they work has a
basic level of skill. Dupuis-Fricke also testified that
using a regular crew allows them to work at other
projects when they are not needed at West Point. The
Sheet Metal Workers also supply their own tools.
We find that this factor favors an award of the dis-
puted work to the employees represented by the Mill-
wrights and the Sheet Metal Workers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Millwrights
are entitled to perform all work on the support brackets
and tank covers and that employees represented by the
Sheet Metal Workers are entitled to perform all alu-
minum duct work and duct work accessories work. We
reach this conclusion relying on the factors of collec-
tive-bargaining agreements, employer preference and
past practice, area and industry practice, economy and
efficiency of operations, and relative skills.
In making this determination, we are awarding the
work to employees represented by the Millwrights and
the Sheet Metal Workers, not to those Unions or their
members.
Scope of the Award
The Employers request an award of the disputed
work that is coextensive with the geographical jurisdic-
tion of United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local #32. Generally, in
order to support a broad award, there must be evidence
that the disputed work has been a continuing source of
controversy in the relevant geographic area, that simi-
lar disputes are likely to recur, and that the charged
party has a proclivity to engage in unlawful conduct to
obtain work similar to the disputed work. Electrical
Workers IBEW Local 211 (Sammons Communications),
287 NLRB 930, 934 (1987). We do not find that the
record in this case supports a broad award. There is no
indication in this record that the Plumbers are likely to
engage in unlawful conduct in pursuit of work similar
to the work in dispute at future projects. Accordingly,
the award is limited to the controversy at the jobsite
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Magnolia Contractors, Inc., rep-
resented by the United Brotherhood of Carpenters and
Joiners of America, Millwrights Local 204, AFL–CIO,
are entitled to perform all work on support brackets
and tank covers at the West Point Treatment Plant in
Seattle, Washington.
2. Employees of Sound Air, Inc., represented by
Sheet Metal Workers Local No. 66, AFL–CIO, are en-
titled to perform all aluminum duct work and duct
work accessories work at the West Point Treatment
Plant in Seattle, Washington.
3. United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local #32, AFL–CIO is not
entitled by means proscribed by Section 8(b)(4)(D) of
the Act to force Magnolia Contractors, Inc. and Sound
Air, Inc. to assign the disputed work to employees rep-
resented by it.
4. Within 10 days from this date, United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
Local #32, AFL–CIO shall notify the Regional Direc-
tor for Region 19 in writing whether it will refrain
from forcing the Employers, by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.