Sheet Metal Workers Local Union No. 11

National Labor Relations Board - Board Decisions

Mar 25, 1975

217 N.L.R.B. 66 (N.L.R.B. 1975)

66 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
Sheet Metal Workers Local Union No. 11 and Pierce-
King -Joint Venture and Wood , Wire & Metal
Lathers International Union , Local 62 . Case 15-
CD-197
March 25, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges. filed on February 19, 1974, by Pierce-King
Joint Venture (herein called the Employer or Pierce-
King), alleging that Sheet Metal Workers Local Union
No. 11 (herein called the SMW or the Respondent) had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing or
requiring the assignment of certain work described be-
low to employees represented by the SMW rather than
to employees of Pierce-King represented by Wood,
Wire & Metal Lathers International Union, Local 62
(herein called the Lathers).
A hearing was held before Hearing Officer Armin J.
Moeller, Jr., on April 29 and 30, 1974. The Employer
and the Respondent appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. Thereafter, the Employer and the
Respondent filed briefs.
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 Board has reviewed the rulings made by the
Hearing Officer 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
briefs, the Board makes the following findings:
I THE BUSINESS OF THE EMPLOYER
The Employer, a joint venture consisting of B. E.
King & Sons, Inc., a Louisiana corporation, and Pierce
Lathing Co., a California corporation, has its principal
office and place of business in New Orleans, Louisiana,
and operates in the construction industry where it is
engaged in the erection and installation of drywall,
lathing, plastering, and fireproofing.
The parties stipulated that the Employer annually
purchases and receives goods and materials, valued in
excess of $50,000, directly from points outside the State
of Louisiana. The parties stipulated, and we find, that
the Employer is engaged in commerce and it will effec-
tuate the purposes of the Act to assert jurisdiction
herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties agree that the SMW and the Lathers are
labor organizations within the meaning of Section 2(5)
of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Initially, Pierce Lathing Co. alone was under con-
tract with the general contractors, the joint venture of
Huber, Hunt & Nichols and Blount Bros. Corp. (herein
called the general contractor of Huber-Blount) to per-
form the drywall, lathing, plastering, and fireproofing
work on the project known as the Louisiana Super-
dome in New Orleans. Pursuant to the subcontract, a
major portion of the work to be performed involved the
construction of the large air return and supply plenums
as part of the air handling system. Drywall was the
material specified. This process involved the installa-
tion of structural steel, 16-gauge studs as the framing
or support for the drywall. In early November 1972,
the Pierce-King Joint Venture was formed and, in a
letter dated November 15, 1972, the Employer assigned
the erection of all drywall work, including-the metal
framing, to the Lathers "as per contract signed between
the [Lathers] and the New Orleans Lathing and Plas-
tering Contractors Association [herein called the
NOLPCA]." At that time B. E. King & Sons, Inc., as
a member of the employer association, was a party to
the Lathers bargaining agreement. In March 1973,
after the general contractor formally approved the
Pierce-King Joint Venture the Employer executed the
Lathers' agreement. The Employer also signed, or
stipulated to, two other craft agreements to which B.
E. King & Sons, Inc. was already a party. One of these
latter agreements was with the Mason's, Plasterer's and
Lather's Tenders Local No. 153 Union (herein called
the Hod Carriers).
On April 26, Sidney LeBlanc, a business agent for
the SMW, approached the Employer's project
manager, Gene Doss, at the jobsite and stated that the
air plenum work belonged to the SMW. Doss replied
that the work was for lathers and that it had already
been assigned to Pierce-King's employees, who were
represented by the Lathers. The meeting ended with
LeBlanc stating that he would call Mark Branigan, the
Lathers business manager. Four days later, LeBlanc
and Branigan met with Doss. In response to LeBlanc's
claim that the work belonged to sheet metal workers,
Branigan replied that the work had been assigned to
lathers, showed LeBlanc the Employer's letter of
217 NLRB No. 6
SHEET METAL WORKERS LOCAL UNION NO. 11 67
November 1972, and said that he would not relinquish
the assignment . LeBlanc replied that he would take the
matter to the Joint Board (i.e., the National Joint
Board for the Settlement of Jurisdictional Disputes).
When asked, Branigan and Doss told LeBlanc that
they had no objection. On May 17, LeBlanc and Brani-
gan, accompanied by other representatives from the
two Unions, met in Doss' field office. After they had
asserted their respective claims , LeBlanc stated that he
intended to take the dispute to the Joint Board and
asked if the Lathers agents had any objections. They
had none . According to LeBlanc , Doss said he had no
objection either; Doss testified that he probably said
something to that effect, adding that "I didn't think
what I had to say would make much difference any-
how."
Thereafter, International representatives of the
SMW and the Lathers prepared their respective argu-
ments to the Impartial Board (i.e., the Joint Board's
successor as of June 1 ). In mid-June, the chairman of
the Impartial Board requested certain information
about the job from the Employer and Huber- Blount. In
a reply, dated June 18, the Employer set forth the
information requested and stated that the work histori-
cally was performed by lathers and that it came within
the work jurisdiction of the Lathers Union, as provided
in the Employer's bargaining agreement , and that the
assignment had been made on that basis. On June 28,
the Impartial Board awarded the disputed work to the
SMW.
Thereafter, LeBlanc called Doss and asked if he
would agree to sign the SMW's bargaining agreement.
Doss refused, explaining that he had no authority to
bargain for Pierce-King. In September, Doss and SMW
Vice President Joe Maggio met with Larry King, Jr.,
the Employer's vice president, to discuss the possibility
of using a composite crew of lathers and sheet-metal
workers on the air plenum work . Apparently, Branigan
of the Lathers had earlier approved of the arrangement,
but he also questioned the sheet-metal workers' qualifi-
cations . King voiced the same concern when he opened
the 15-minute meeting and stated that production
would suffer and, therefore , insisted that all composite
crew members be paid according to the lathers' low
wage scale and that all work be supervised closely by
foremen of the Employer 's own choosing. Doss also
challenged the sheet-metal workers' skills . Maggio told
them that if the SMW could not furnish qualified work-
men the SMW would use the Employer's lathers to
perform the work. The meeting ended without an
agreement on the composite crew . Maggio reported the
results of his meeting with SMW Agent Stanley Gaudet
who rejected the plan. Thereafter, Gaudet telephoned
Doss on a monthly basis to ask when the air plenum
work would begin. Doss explained that it would be
after the roof was erected, and continued to question
the SMW's ability to furnish workmen skilled in per-
forming the air plenum work.
In November, LeBlanc and Gaudet approached
Robert Morgan , project manager for Huber-Blount,
and asked if he knew about the Impartial Board's
award. Morgan replied that he did, and that the SMW
should deal directly with Pierce-King. However, in
January 1974, Gaudet called Morgan to ask when
Pierce-King would begin work on the air plenums, add-
ing that if the sheet-metal workers did not get the work
there "would certainly be trouble in the Superdome."
On February 13, SMW Official Mike Turcotte
learned that Pierce-King was scheduled to begin the air
plenum work on the following day . He immediately
told Morgan that if the sheet -metal workers did not do
the work "there would be a lot of trouble." Asked if this
was a "threat," Turcotte replied, "No, there would just
be a lot of trouble. This is sheet metal work . . . ."
Early the next day, the Employer began work on the
air plenums with its employees . Soon after 8 o'clock the
employees of two other subcontractors represented by
the SMW walked off the project and did not return that
day.
Shortly after 6 o'clock the following morning, Febru-
ary 15, pickets were stationed at each of the eight gates
to the Superdome project carrying signs bearing the
following legend:
PIERCE-KING
(A JOINT VENTURE)
REFUSES TO ABIDE BY THE DECISION
OF THE IMPARTIAL JURISDICTIONAL OF
THE DISPUTE BOARD FOR THE CONSTRUCTION INDUSTRY
SHEET METAL LOCAL #I I
AFFILIATED WITH
SOUTHEASTERN LA BLDG & CONST
TRADE COUNCIL
NO OTHER EMPLOYER INVOLVEDI
Some 850 skilled craftsmen, employed by the 30 sub-
contractors on the Superdome project, refused to go to
work. After several unsuccessful attempts, Morgan fi-
nally reached Gaudet by telephone. When asked "what
the problem was," Gaudet answered, "the work be-
longed to sheet metal and we was doing it with metal
lathers and plasterers ." In his testimony , Gaudet re-
I Error in onginal.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called Morgan asking, "How do I get these pickets
down?" and his replying, "Stop the work in question or
. take the lathers off of this work."
On Saturday, February 16, the Employer, through
its attorney, sent a telegram to the SMW advising that
it had stopped work on the air plenums. When Morgan
arrived at work on Monday, February 18, the pickets
were still on the jobsite. Thereafter, Morgan contacted
Gaudet who explained that he had just received the
telegram and that the pickets would be removed im-
mediately, and they were.
B. The Work in Dispute
The work here in dispute is the construction of -air
supply and return plenums, as part of the air-handling
system on the Superdome, which requires the installa-
tion of drywall and the structural framing, consisting
of 16-gauge metal studs.
C. The Contentions of the Parties
The Respondent contends that the Board is without
jurisdiction to determine the merits of this dispute un-
der Section 10(k) of the Act since the Employer by
various collective-bargaining agreements, and the
Lathers and the SMW as well, has agreed upon a
method or methods for the voluntary adjustment of the
dispute. The Respondent also asserts that, irrespective
of any contractual commitment, the parties agreed to
submit to the Impartial Board and abide by its award.
Moreover, the Respondent contends that the Lathers
withdrew its claim to the work in dispute. Accordingly,
the Respondent contends that the notice of hearing
must be quashed. Alternatively, the Respondent con-
tends that the disputed work should be assigned to
employees represented by it on the basis of the instant
and previous decisions of the Impartial Board and the
Joint Board, and certain other factors normally consid-
ered by the Board in determining these disputes.
The Employer, on the other hand, contends that the
dispute is properly before the Board because there is no
method for voluntary settlement to which all the neces-
sary parties are bound. The Employer maintains that
the Lathers did not withdraw its claim to the disputed
work and the Respondent violated Section 8(b)(4)(D)
by making threatening statements and engaging in
picketing for a proscribed object. Finally, the Employer
asserts that a determination of this dispute in favor of
its own employees, represented by the Lathers, -is ap-
propriate in view of the- contract with the Lathers,
company and area practice,-possession by the lathers of
the requisite skills, efficiency and economy of opera-
tion, and the Employer's assignment of the work.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the 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 upon methods for the
voluntary adjustment of the dispute.
As to (1) above, it is virtually conceded that on sev-
eral occasions representatives, agents, and officials of
the SMW stated that there would be "trouble" on the
job if the disputed work were not reassigned to sheet-
metal workers, that the last such statement was made
immediately prior to the commencement of picketing
by the SMW, that the picketing occurred because the
work had not been reassigned to sheet-metal workers,
and, finally, that the picketing ceased once the Em-
ployer promised either to "stop the work in question or
.. . take the lathers off this work." It is abundantly
clear to us that this conduct was in support of the
SMW's demand that Pierce-King assign the disputed
work to employees represented by the SMW's conduct
violated Section 8(b)(4)(D) of the Act.
With respect to (2) above, the Respondent advanced
several arguments:
1. As shown, in 1971, B. E. King & Sons executed
a bargaining agreement with the Hod Carriers. Later,
the Employer became a party to this agreement. The
Hod Carriers contract incorporated a so-called master
agreement negotiated by the New Orleans Chapter of
the Associated General Contractors of America (herein
called the NOAGC), and Southeastern Louisiana La-
borers' District Council (herein called the District
Council), which represented, among other unions, the
SMW and the Hod Carriers, but not the Lathers. Both
agreements were due to expire in 1974. In pertinent
part, the master agreement provides that "members of
the [NOAGC] signatory hereto":
Agree that during the term of this Agreement they
will be bound by any procedure or method for the
settlement of jurisdictional disputes which may be
agreed upon by the Building and Construction
Trades Department, AFL-CIO, and the Associ-
ated General Contractors of America during the
period such method or procedure continues to be
approved by both of these organizations.
Unless and until such approved procedure is es-
tablished the following procedure for the settle-
ment of jurisdictional disputes shall be adhered to
and binding upon all parties signatory to this
Agreement.
* *
SHEET METAL WORKERS LOCAL UNION NO. 11
All parties to the dispute will be bound by the
decision of the International Unions with respect
to that particular job.
On June 1, 1973, the plan creating the Impartial
Board came into being. By its terms, the plan binds
employees who have "signed a stipulation to the Plan,"
or "are members of a stipulated association of employ-
ers," or, finally, are parties to a bargaining agreement
providing for "these procedures herein set forth."
It is undisputed that the Employer neither signed the
stipulation to the plan nor became a member of a stipu-
lated employer association. Therefore, we understand
the Respondent to argue that the Employer was bound
to the plan solely by virtue of the Hod Carriers contract
and the master agreement , which , it is argued, an-
ticipated the plan. In the alternative, the Respondent
asserts that should we find that the Employer was not
bound to the plan it was, at the very least, required to
honor "the decision of the International Unions [i.e.,
the Lathers and the SMW] with respect to [the
dispute]," as provided in the master agreement.
We find no merit in these contentions for a number
of reasons. Thus, the Board has consistently interpreted
Section 10(k) to mean that the employer making the
work assignment and the rival unions claiming the
work comprise the "parties to the dispute," and that all
must approve and enter into a voluntary adjustment
procedure in order to preclude a hearing and determi-
nation pursuant to that section.' The Respondent
recognizes this principle. Yet we look in vain to find
any evidence that all of the parties to the instant dispute
entered into such a voluntary agreement. Initially, the
Respondent 's reliance on the Hod Carriers agreement
is misplaced because the union is not a party to this
dispute and, by the terms of that contract, any commit-
ment to honor the master agreement is expressly con-
fined to the "parties"; namely, the Employer and the
Hod Carriers. See Plumbers and Steamfltters Local
Union No. 157 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO (Curry
Construction Company), 191 NLRB 302 (1971). Also,
we note that the Employer's contract with the Lathers
makes no mention of the master agreement for good
reason because the Lathers was neither signatory to
that agreement nor, as far as the record reveals, a mem-
ber of the District Council. And, as shown above, the
Employer had no bargaining agreement with the SMW.
Our conclusion that the master agreement is only bind-
2 N.L.R.B. v. Plasterers' Local Union No. 79, Operative Plasterers' and
Cement Masons' International Association AFL-CIO [Southwestern Con-
struction Co.], 404 U.S. 116 (1971); Lathers Union Local 104, The Wood,
Wire and Metal Lathers International Union, AFL-CIO (The Blaine Petty
Company, 186 NLRB 365 (1970); Bricklayers, Masons and Plasterers'Inter-
national Union ofAmerica, Local No. 1, AFL-CIO (Lembke Construction
Company of Colorado, Inc.), 194 NLRB 469 (1971).
69
ing upon the Employer and the Hod Carriers, and not
the other parties of this dispute, is further reinforced by
the fact that that agreement purports to bind only
"members of the, [NOAGC] signatory hereto," and it
is undisputed that neither the Employer nor NOLPCA
ever became a member of the NOAGC. From the
foregoing, it is abundantly clear to us that with respect
to this jurisdictional dispute the Employer was not
bound by the master agreement and, therefore, was not
required either to follow the award of the Impartial
Board or to adhere to the "decision of the International
Union."
2. In the May 17, 1973, meeting with the Lathers
representatives and Pierce-King Project Manager
Doss, an SMW agent, LeBlanc, stated that he would
take the dispute to the National Joint Board and asked
if the others had any objection. The Lathers had none,
and Doss voiced no objection. Later, in June, the chair-
man of the Impartial Board sent letters to both Huber-
Blount and Pierce Lathing Co. requesting certain infor-
mation pertaining to the disputed work. Larry King,
Sr., president of B. E. King & Sons, first received the
Impartial Board's letter as an attachment to a letter
from the general contractor asking that he furnish the
information requested. As related above, King sent 'his
letter, dated June 18, to the Impartial Board setting
forth certain background data and asserting the reasons
for the assignment. Following the Impartial Board's
decision, there was some discussion about using a com-
posite crew of lathers and sheet-metal workers. Later
SMW Agent Gaudet telephoned Doss periodically to
inquire when the plenum work was to begin and, to
assure Doss that the SMW had qualified workmen.
The Respondent contends that the foregoing con-
duct manifests the Employer's agreement to submit to
the Impartial Board and abide by its award. We disa-
gree.
(a) When considered in light of the surrounding cir-
cumstances, Doss' failure to object to the SMW's sub-
mission to the Impartial Board because it "wouldn't
make much difference anyhow" is equivocal, and sug-
gests a number of inconsequential possibilities, includ-
ing his sense of futility in trying to convince the SMW
that Pierce-King had long since decided to use its own
lathing employees. More important, it is conceded that
Doss had no authority to bargain for Pierce-King or
bind it to such a commitment.
(b) As for the Employer's letter to the Impartial
Board, Larry King, Sr., maintained at the hearing that
he was only complying with the requests from both the
Impartial Board and Huber-Blount and, although he
felt that his letter might possibly aid the Lathers in
presenting its case, he did not consider the Employer
a party to the Impartial Board's proceeding or in any
way bound by its decision. In our view, this effort to
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cooperate with the Impartial Board and the general
contractor is not synonymous with submission to it.
Painters and Drywall Finishers, Local No. 79,- affiliated
with International Brotherhood of Painters and Allied
Trades, AFL-CIO (Richard O'Brien Plastering Co., 213
NLRB No. 106 (1974).3
(c) Finally, we do not view the discussion regarding
the composite crew as a concession to the SMW that
the Employer was willing to abide by the Impartial
Board decision and reassign the work to sheet-metal
workers. As related above, the Employer was clearly
unwilling to make such a concession because of the
SMW's inability to furnish qualified, efficient work-
men. Indeed, the record reveals that there was no sub-
stantive discussion of the award at the meeting. Ac-
cording to Larry King, Jr., consideration of the
composite crew was triggered by a real concern of
SMW-sponsored work stoppage. Moreover, the
proposal for using a combined crew of lathers and
sheet-metal workers was clearly contrary to the Impar-
tial Board's decision awarding all of the work to the
latter group. We are left with Doss' several brief tele-
phone conversations with Gaudet, which in the main
concerned only the scheduling of work on the air ple-
nums , and whether the SMW was able to furnish quali-
fied workmen. We find no evidence that Doss related
any charge in the Employer's position that it would not
follow the Impartial Board's decision. Even according
to Gaudet's somewhat conflicting testimony, Doss,
who had no authority in the matter anyway, at most
indicated on only one occasion that he could use one
sheet-metal worker.
3. At various times after the work was assigned to the
Lathers its International president, Kenneth Edwards,
and business manager , Mark Branigan, expressed some
reluctance to continuing to claim the work ostensibly
because of the Impartial Board's decision. Thus,
shortly after the Impartial Board's decision, Edwards
told Larry King, Sr., that he did not know whether the
Lathers would still claim the work. In addition, Brani-
3 Our dissenting colleague finds that the Employer , through Doss , twice,
on April 30 and May 17, acquiesced in the SMW's decision to submit the
dispute to the Joint Board, and "m conformance with their agreement" filed
certain information , some of which supported the Lathers In this regard, we
note as stated, Doss had made the Employer 's position regarding assign-
ment to the disputed work quite clear at the April 26 meeting and there is
no showing that at that time, or thereafter, Doss represented that the Em-
ployer's commitment , including a bargaining agreement with the Lathers,
had changed. Moreover, it is undisputed that Doss possessed no authority
to bind the Employer in such matters This is the state of the record before
us If, under these circumstances, the SMW chose to interpret Doss' failure
to object as both an act binding upon the Employer and as an expression
of the Employer's willingness to submit to, and be bound by, amaward of
either the Joint or Impartial Boards, it did so at its own peril. In the absence
of such an agreement binding upon the parties we cannot interpret the
Employer's response to requests for information, in large part prodded along
by the general contractor, as anything more than a effort to cooperate with
the Impartial Board and the general contractor.
gan was apparently instrumental in initiating discus-
sion about the use of a composite crew.
The Respondent argues that these circumstances
compel a finding that the Lathers had relinquished its
claim to the work. We disagree. At no time did the
Lathers actually abandon its claim. At most, all that is
shown is that the matter was under consideration and
that possibly some accommodation could be reached in
order to avoid the confrontation which later occurred.
Finally, it is undisputed that, in February 1974, Ed-
wards told King that the Lathers still claimed the
work, reaffirming that he "would man the jurisdiction
[and] would man the job with lathers."
In sum, we conclude that the Respondent has failed
to show that the Employer agreed to submit to and be
bound by the Impartial Board's award or that the Lath-
ers abandoned all claim to the work for its members.
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 various relevant factors. As
the Board has stated , the determination in a jurisdic-
tional dispute case is an act of judgment based on com-
monsense and experience in weighing these factors.4
The following factors are, relevant to making a determi-
nation of the dispute before us.
1. Certification and collective-bargaining agreements
Neither of the labor organizations involved herein
has been certified by the Board . However, B. E. King
& Sons has , since it was formed in 1945, maintained
collective-bargaining relations with the Lathers and
has been a party to successive agreements with the
Union. Pierce Lathing Co.'s collective -bargaining rela-
tions with the Lathers is not revealed in the record of
this case. But, as a participant in the joint venture,
Pierce Lathing Co. is currently a party to the Lathers
contract, which covers the employees who have been
performing the disputed work. That contract makes
specific reference to, the erection of drywall and sup
porting metal studs of various kinds. The Employer has
no employees represented by the SMW, and has never
had collective-bargaining agreements with that Union.
Accordingly, we find that the contractual relationship
between the Employer and the Lathers favors the Lath-
ers.
4 N.LR.B. v. Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO
[Columbia Broadcasting System], 364 U S. 573 (1961); International As-
sociation ofMachinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction
Company), 135 NLRB 1402 (1962).
SHEET METAL WORKERS LOCAL UNION NO. 11 71
N
2. Company and area practice
As the Superdome project is the first major endeavor
for the Employer, it is necessary to consider the past
practice of B. E. King & Sons, in the New Orleans area.
Metal studs have only been used in the building busi-
ness in New Orleans area for approximately 15 years.
Until 8 years ago, the installation and erection of dry-
wall, or gypsum board, and metal studs were assigned
to carpenters. However, pursuant to a so-called status
quo agreement between the Carpenters union and the
Lathers in the mid-1960's the following accommoda-
tion was reached: If a contractor has a bargaining
agreement with the Lathers alone, the erection of dry-
wall and metal studs is assigned to lathers and, con-
versely, if a contractor has an agreement with the Car-
penters union alone, the work is assigned to carpenters.
B. E. King & Sons is one of only four companies in the
New Orleans area which performs this work. All four
companies are members of NOLPCA and employ only
lathers. Therefore, virtually all of the commercial work
in New Orleans is performed by employees represented
by the Lathers and is covered by that Union's contract.
The sheet-metal workers, on the other hand, have sel-
dom or never performed this type of work, and the
SMW representative, Gaudet, could not recall ever rem
ferring a sheet-metal worker to erect drywall and metal
studs. Clearly, area practice and, to a substantial ex-
tent, company practice favor the Lathers.
puted work. Because of this efficiency factor the Em-
ployer maintains that employing sheet-metal workers
instead of Lathers would cost it about $400,000 more
to perform the disputed work. This sum represents
approximately 14 percent of its contract with Huber-
Blount . Thus, the Employer estimates that a journey-
man sheet-metal worker would be only 25 percent as
efficient as a journeyman lather which would result in
1,500 or 1,600 total man-days of lathers' work versus
approximately 5,000 man-days of sheet-metal workers'
work.
We conclude that the factors of skill, efficiency, and
economy of operations strongly favor award of the dis-
puted work to the employees represented by the Lath-
ers.
4. The Impartial Board award
Although we do not consider the Impartial Board
award of the work binding on the Employer, we do
consider it as a factor in determining the proper assign-
ment on the work in dispute. However, in view of all
the circumstances, we are of the-opinion that the Im-
partial Board award should not be given controlling
weight herein. In reading this result, we have also con-
sidered other awards introduced into evidence by the
SMW. However, we note that none of these awards
involves any of the parties to this dispute other than the
SMW. -
3. Skills, efficiency, and economy of operation
There is substantial agreement that the construction
of air supply and return plenums on the magnitude
called for on the Superdome project is unique. The
Employer contends, however, that the skills required in
erecting drywall and metal studs to form air plenums
are virtually the same as those required in erecting
walls and ceilings in large buildings, which has been,
for at least 8 years, the work of lathers. It is argued that
these skills have been first acquired in the Lathers 2-
year apprenticeship programs where as many as 300 of
the 416 hours spent in class are devoted to working
with drywall, and an additional 100 hours are spent on
metal lathing which includes the use of metal studs.
The Respondent contends that the sheet-metal workers
possess skills equal to those of the lathers and are espe-
cially experienced in the construction of air ducts, us-
ing many different materials, including metal studs.
While the SMW's apprenticeship program does not
include the use of drywall, the sheet-metal workers do
at least occasionally use that building material, utiliz-
ing many of the tools commonly used by the lathers.
The Employer contends that because of their pecul-
iar skills and experience the lathers are more efficient
than the sheet-metal workers in performing the dis-
5. Employer's- assignment of work
We find that the Employer's assignment of the dis-
puted work to employees represented by the Lathers
was based on sound business considerations, including
present and previous bargaining relationships, com-
pany and area practice, skill, efficiency, and economy
of operations.
Conclusions
Upon the record as a whole, and after full considera-
tion of all relevant factors involved, we conclude that
the Employer's employees who are represented by the
Lathers are entitled to the work in dispute. In reaching
this conclusion, we have particularly relied on the Em-
ployer's assigment of the work to its employees; the fact
that his assignment is consistent with past area practice
and the Employer's collective-bargaining agreement
with the Lathers; the fact that the Lathers-represented
employees possess the requisite skills to perform the
work; and the efficiency and economy of operations
which result from such assignment . We shall, there-
fore, determine the dispute before us by awarding the
work involved herein to those employees represented
by the Lathers, but not to that Union or its members.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scope of Award
The Employer requests a broad work award, con-
tending that it is necessary to avoid similar disputes
which are likely to occur in the future at other con-
struction sites on which it is performing drywall work.
However, we do not find the record evidence herein
sufficient to establish a pattern of misconduct sugges-
tive of a likelihood that this dispute will extend to other
jobsites or recur in the future. Accordingly, we do not
believe that the broad order requested by the Employer
is appropriate at: this time and, therefore, the determi-
nation herein shall apply only to the Superdome pro-
ject.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees of Pierce-King Joint Venture repre-
sented by Wood, Wire & Metal Lathers International
Union, Local 62, are entitled to perform the work of
installing drywall and metal studs in constructing the
air supply and return plenums of the Superdome pro-
ject in New Orleans, Louisiana.
2. Sheet Metal Workers Local Union No. 11 is not
entitled by means proscribed by Section 8(b)(4)(D) of
the Act to force or require the assignment of the above
work to its members or to employees it represents.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Sheet Metal Workers Local
Union No. 11 shall notify the Regional Director for
Region 15, in writing, whether it will refrain from forc-
ing or requiring, by means proscribed by Section
8(b)(4)(D) of the Act, the assignment of the work in
dispute to employees represented by Sheet Metal
Workers Local Union No. 11, rather than to employees
represented by Wood, Wire & Metal Lathers Interna-
tional Union, Local 62.
MEMBER FANNING, dissenting:
I would quash the notice of hearing in this case. It
seems clear to me from the -record that the parties to
this dispute have utilized a voluntary method for the
resolution of their differences and that that method has,
in fact, resulted in an award to the Respondent Union.
As set forth in the majority decision on April 26, and
again on May 17, 1973, LeBlanc, Respondent's busi-
ness agent , meeting with the representatives of the
Lathers and the Employers, informed them that he
would take their jurisdictional dispute to the Joint
Board and specifically asked if either of them had any
objections. Both stated that they had no objection.
Thereafter, in conformance with their agreement, , In-
ternational representatives of both Unions submitted
their arguments to the Joint Board. The Employer, on
request, submitted job information and included in its
argument that the disputed work belonged to the lath-
ers. On June 28 the Joint Board awarded the work to
the Respondent Union.
In my opinion, the above evidence satisfies the statu-
tory criterion for the voluntary adjustment of a juris-
dictional dispute. To assert, as the majority does, that
Doss, the Employer's project manager at the jobsite,
did not have authority to commit the Employer to a
voluntary adjustment of a dispute between two unions
strains credulity. Whether or not his authority was real,
clearly he acted with apparent authority upon which
the other parties to the dispute had a right to rely. At
no time did the Employer repudiate Doss' voluntary
agreement to present the dispute to the Joint Board.
Indeed, as indicated above, the Employer voluntarily
submitted job information to the Joint Board and set
forth its position with respect to the merits of the
award. It was only after the Joint Board ruled against
the Employer's position and in favor of the Respondent
Union that the Employer filed its charge in this case,
alleging that this jurisdictional dispute could not be
resolved by voluntary means.