Carpenters (Servco Cos.)

National Labor Relations Board - Board Decisions

Nov 30, 1994

315 N.L.R.B. 696 (N.L.R.B. 1994)

696
315 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1994 unless otherwise specified. An amended
charge was filed on May 10.
Carpenters District Council of Greater St. Louis,
AFL–CIO and Sheet Metal Workers’ Inter-
national Association, Local 36 and Servco
Companies. Case 14–CD–891
November 30, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS STEPHENS, BROWNING, AND COHEN
The charge in this Section 10(k) proceeding was
filed on May 5, 1994,1 by the Sheet Metal Workers’
International Association, Local 36 (Sheet Metal
Workers), alleging that the Respondent, Carpenters
District Council of Greater St. Louis, AFL–CIO (Car-
penters), violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing Servco Companies (the Em-
ployer) to assign certain work to employees it rep-
resents rather than to employees represented by the
Sheet Metal Workers. A hearing was held on June 8
before Hearing Officer Donald F. Jueneman. There-
after the Sheet Metal Workers filed a brief.
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 Employer, a Missouri corporation, is engaged in
the nonretail manufacture, sale, and installation of
commercial kitchen and food service equipment at its
facility in St. Louis, Missouri, where it annually pur-
chases and receives, directly from points located out-
side the State of Missouri, goods valued in excess of
$50,000. The parties stipulate, and we find, that the
Employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that Carpenters
and Sheet Metal Workers are labor organizations with-
in the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
General contractor J.S. Alberici, Inc. (Alberici) con-
tracted with Station Casinos, Inc. (Station Casinos) for
the construction of a two-deck barge for a riverboat ca-
sino gambling operation. Alberici subcontracted with
Servco for certain furnishings and installation of kitch-
en and food service equipment, including the installa-
tion of six walk-in coolers. This work was to take
place at the Louisiana docks in St. Louis, Missouri. In-
stallation of the first walk-in cooler was scheduled for
May 5.
Servco performs walk-in cooler work as part of its
national commercial kitchen installation operation. It
uses employees represented by the Sheet Metal Work-
ers to perform this work. However, in the St. Louis
metropolitan area and surrounding Missouri counties
within the jurisdiction of the Carpenters, Servco has
subcontracted large restaurant walk-in cooler work to
employers whose employees are represented by the
Carpenters. Servco did so pursuant to a 1982 jurisdic-
tional agreement between the Carpenters and the Sheet
Metal Workers.
On May 3, Earl E. Gates Jr., president of Servco,
telephoned Bob Bowling, business representative for
the Sheet Metal Workers in St. Louis, in order to ver-
ify information Gates had received concerning the de-
mise of the 1982 agreement. Bowling told Gates that
the agreement no longer existed and all walk-in cooler
work was being done by employees represented by the
Sheet Metal Workers. Servco then assigned the dis-
puted work to its employees represented by the Sheet
Metal Workers. Servco has no contract with the Car-
penters and is not obligated by its contract with
Alberici to assign any of the disputed work to employ-
ees represented by the Carpenters.
Later that morning, Tim Hildebrandt, business rep-
resentative for the Carpenters, telephoned Gates to tell
Gates that he was aware of the impending delivery of
walk-in coolers and that their installation was work be-
longing to employees represented by the Carpenters.
Gates advised Hildebrandt of his conversation with
Bowling and told Hildebrandt that he had assigned the
disputed work to his own employees represented by
the Sheet Metal Workers. Hildebrandt repeated that the
work belonged to employees represented by the Car-
penters and that the Carpenters would not yield on
this.
On the next day, May 4, Bob Pape, jurisdictional
representative for the Carpenters, telephoned Gates and
reiterated that the work belonged to employees rep-
resented by the Carpenters and that the Carpenters was
not going to give up the work. Pape said that he
‘‘would do what he had to do.’’
On May 5, Servco’s truck with the cooler arrived at
the worksite. Before unloading began, Carpenters Rep-
resentative Hildebrandt began picketing. He wore a
sign stating that Servco did not have a contract with
the Carpenters and he carried an umbrella that identi-
fied the Carpenters. About 50 or 60 employees work-
ing on the barge left work and waited on the dock.
Thereafter General Contractor Alberici’s representa-
tives ordered that the truck be removed from the area.
The picketing then ceased and the employees returned
to work.
697CARPENTERS (SERVCO COS.)
On May 11, Servco again attempted to deliver walk-
in cooler parts. Alberici’s Greg Foushner told Gates
that Hildebrandt was at the worksite and would throw
up a picket if Servco attempted to unload the walk-in
cooler parts. Alberici therefore refused to allow Servco
to make the delivery. As of the date of the hearing, the
disputed work was still incomplete.
B. Work in Dispute
The disputed work involves installing walk-in cool-
ers on a two-deck barge being constructed for Station
Casinos at the Louisiana docks in St. Louis, Missouri.
C. Contentions of the Parties
Servco contends that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated, that it properly assigned the disputed work to its
employees represented by the Sheet Metal Workers,
that its contract with the Sheet Metal Workers encom-
passes the work in question, and that it is more eco-
nomical and efficient to have its employees rep-
resented by the Sheet Metal Workers perform the dis-
puted work.
The Sheet Metal Workers contend that the disputed
work has been properly assigned to the employees it
represents pursuant to the terms of its labor agreement
with Servco, that employees it represents possess the
skills and abilities to perform the work, and that it is
more efficient and economical for Servco to have em-
ployees represented by the Sheet Metal Workers per-
form the work. The Sheet Metal Workers also contend
that the practice in the St. Louis metropolitan area is
mixed with employees represented by the Carpenters
installing nonfast food restaurant walk-in coolers but
employees represented by the Sheet Metal Workers in-
stalling fast food restaurant walk-in coolers. Moreover,
employees represented by the Sheet Metal Workers
perform the disputed work for Servco in all other areas
of the country.
The Carpenters contend that there is a clear and
unmixed practice in the St. Louis metropolitan area for
employees represented by Carpenters to perform the
disputed work pursuant to the 1982 jurisdictional
agreement between the Carpenters and Sheet Metal
Workers.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated and that the parties have not agreed on a method
for a voluntary adjustment of the dispute. As discussed
above, Hildebrandt and Pape told Servco that the dis-
puted work belonged to employees represented by the
Carpenters and the Carpenters would not yield and
would ‘‘do what we have to do.’’ The next day
Hildebrandt picketed the jobsite, and employees on the
barge engaged in a work stoppage that, along with the
picketing, lasted until Alberici denied Servco permis-
sion to deliver walk-in cooler components to the job-
site. A few days later Alberici refused to let Servco
make another delivery to preclude Hildebrandt from re-
suming the picketing. Finally, the parties stipulated
that there is no voluntary method of resolving jurisdic-
tional disputes which would be binding on all parties.
In light of the foregoing, we find reasonable cause
to believe that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed-on method for
voluntarily adjusting the dispute. Accordingly, we find
that the dispute is properly before the Board for deter-
mination.
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 following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements
The Sheet Metal Workers’ collective-bargaining
agreement with Servco runs from May 1, 1992,
through April 30, 1996. Its jurisdictional clause spe-
cifically encompasses the disputed work:
Any and all sheet metal work in connection with
or incidental to the equipment and operation of
kitchens in hotels, restaurants, hospitals, lunch
rooms, drug stores, banks, dining cars, public and
semi-public buildings, including ranges, canopies,
steam tables, work tables, dishwashers, coffee
urns, soda fountains, warming closets, sinks,
drainboards, garbage chutes, and incinerators, re-
frigerators and all other sheet metal work includ-
ing welding and polishing in connection with
kitchen equipment or refrigeration plants.
Servco has never had a collective-bargaining agree-
ment with the Carpenters. Accordingly, we find the
factor of collective-bargaining agreements tends to
favor an award of the disputed work to employees rep-
resented by the Sheet Metal Workers.
2. Interunion agreement
John K. Larson and Bob Bowling, business rep-
resentatives for the Sheet Metal Workers, both testified
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The agreement cites 36 types of work and says specifically about
walk-in coolers:
Walk-in Coolers—Walk-in coolers in conjunction with kitchen
equipment (fast food chains only—such as Burger Chef, Burger
King, Wendy’s, Taco Bell, etc.) to be the work of the Sheet
Metal Workers, if in Sheet Metal contractor’s contract. Large
field assembled coolers such as those fabricated by Hussman not
claimed by Sheet Metal Workers. (Institutions such as hospitals
and large restaurants).
3 Sheet Metal Workers Local 9 (J. A. Jones Construction Co.), 267
NLRB 22, 25 (1983).
that in 1982 the Carpenters and Sheet Metal Workers
agreed to a division of walk-in cooler work in the St.
Louis area. The Carpenters were given jurisdiction
over large restaurants and institutions and the Sheet
Metal Workers jurisdiction over fast food chains.2
However, Larson further testified that Jim Rudolph, ju-
risdictional representative for the Carpenters, told him
that the Carpenters would no longer abide by the 1982
agreement and that the Carpenters preferred to nego-
tiate on a job-to-job basis. He also testified that he saw
a copy of a letter that the Carpenters sent to the Sheet
Metal Workers repudiating the 1982 agreement. Bowl-
ing further testified that when a conflict arose over
work at the Laclede Oaks Retirement Center on De-
cember 8, 1992, he telephoned Rudolph and Rudolph
told him that the Carpenters were no longer going to
abide by the 1982 agreement. Bowling also testified
that subsequently a similar conflict arose with the
Postal Credit Union job at Lindbergh and I-55 and Ru-
dolph again told him that the Carpenters were not
abiding by the 1982 agreement. Finally, Larson testi-
fied that representatives for the two unions met on
three occasions in 1993 to try to settle their jurisdic-
tional differences without success.
The Board has not assigned significant weight to
interunion agreements where all the parties have not
agreed to abide by them.3 Both the record evidence
and the current dispute show that neither the Sheet
Metal Workers nor the Carpenters adhere to the 1982
agreement. Accordingly, we give no weight to this fac-
tor.
3. Company preference and past practice
Servco prefers to assign the disputed work to its em-
ployees represented by the Sheet Metal Workers.
Servco does not have any employees represented by
the Carpenters. Servco has always used its own em-
ployees represented by the Sheet Metal Workers to
perform all its sheet metal work. Servco subcontracted
only limited work to employers of employees rep-
resented by the Carpenters pursuant to the 1982 agree-
ment. Gates testified that of the 21 walk-in cooler in-
stallations that Servco had performed in the 3 years
preceding June, only five were performed in the St.
Louis area. Moreover, two of the five were performed
by Servco’s own employees represented by the Sheet
Metal Workers. These same employees performed
some work even on the other three jobs where Servco
subcontracted to employers whose employees were
represented by the Carpenters pursuant to the 1982
agreement.
We therefore find that this factor favors an award of
the work in dispute to employees represented by the
Sheet Metal Workers.
4. Area and industry practice
The record shows that Servco’s employees rep-
resented by the Sheet Metal Workers perform the dis-
puted work nationally. However, in the St. Louis area,
there is a recent history of mixed practice. Employees
represented by the Carpenters have installed walk-in
coolers at large institutions and restaurants like the
Station Casinos job at issue here. However, employees
represented by the Sheet Metal Workers have done this
work at fast food restaurants.
Accordingly, we find that this factor does not favor
awarding the work to either group of employees.
5. Relative skills
Gates testified that there was little difference in
quality between the work performed by Servco’s own
employees represented by the Sheet Metal Workers
and by subcontractors’ employees represented by the
Carpenters.
We find that this factor favors awarding the work to
neither group of employees.
6. Economy and efficiency of operation
Gates testified that Servco’s employees represented
by the Sheet Metal Workers install walk-in coolers all
over the country and are experienced in all facets of
sheet metal work. Gates noted that by installing com-
mercial kitchens nationally, Servco’s employees have
years of experience, have corrected errors, and have
learned to ‘‘work smarter.’’ Gates testified that Servco
finds it economical to use its own employees for war-
ranty work thereby enhancing work continuity. Gates
also testified that it took 50 to 100 percent longer for
employees represented by the Carpenters to do the
work because they did not do this sort of work regu-
larly as Servco’s own employees did. Finally, Gates
noted that it was more profitable for Servco to use its
own employees for all walk-in cooler work because
subcontracting increased Servco’s costs.
Accordingly, we find that the factor of economy and
efficiency of operation favors awarding the work in
dispute to employees represented by the Sheet Metal
Workers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Sheet Metal
699CARPENTERS (SERVCO COS.)
Workers are entitled to perform the work in dispute.
We reach this conclusion relying on the collective-bar-
gaining agreement between Servco and the Sheet
Metal Workers, the Employer’s preference and past
practice, and economy and efficiency of operation. In
making this determination, we are awarding the work
to employees represented by the Sheet Metal Workers,
not to that Union or its members. The determination
is limited to the controversy that gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Servco Companies represented by
Sheet Metal Workers’ International Association, Local
36 are entitled to perform the installation of walk-in
coolers on a two-deck barge being constructed for Sta-
tion Casinos, Inc., at the Louisiana docks in St. Louis,
Missouri.
2. Carpenters District Council of Greater St. Louis,
AFL–CIO, is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force Servco Companies
to assign the disputed work to employees represented
by it.
3. Within 10 days from this date, Carpenters District
Council of Greater St. Louis, AFL–CIO shall notify
the Regional Director for Region 14 in writing whether
it will refrain from forcing the Employer, by means
proscribed by Section 8(b)(4)(D), to assign the dis-
puted work in a manner inconsistent with this deter-
mination.