Elevator Constructors Local 5 (Stuart-Dean Co.)

National Labor Relations Board - Board Decisions

Apr 23, 1993

310 N.L.R.B. 1189 (N.L.R.B. 1993)

1189
310 NLRB No. 202
ELEVATOR CONSTRUCTORS LOCAL 5 (STUART-DEAN CO.)
1 We find no merit to Local 5’s request that the Board adopt the
findings of the U.S. District Court for the Eastern District of Penn-
sylvania, which denied the Regional Director’s 10(l) petition in the
instant dispute. Congress has entrusted the Board in the first instance
with the function of determining whether to proceed with a deter-
mination of dispute pursuant to Sec. 10(k) and a decision by a dis-
trict court on an injunction petition is in no way binding on the
Board. Southern California Pipe Trades Council No. 16 (Kimstock
Div.), 198 NLRB 1240, 1242 (1972). Thus, even when a court de-
nies a 10(l) injunction which the Board has sought on the basis of
an 8(b)(4)(D) charge, the Board is still free to conduct statutorily au-
thorized procedures which flow from that charge. Hoeber v. Roofers
Local 30, 939 F.2d 118, 123 fn. 7 (3d Cir. 1991). See also Coronet
Foods v. NLRB, 981 F.2d 1284 (D.C. Cir. 1993) (determinations in
court decision denying 10(j) injunction not binding on Board in sub-
sequent related unfair labor practice proceeding).
2 NEII is a membership corporation which represents employer
members in collective bargaining and negotiates contracts with the
International Union of Elevator Constructors (IUEC) on a nationwide
basis.
3 All subsequent dates refer to 1992.
Local No. 5, International Union of Elevator Con-
structors and Stuart-Dean Co., Inc., Pennsyl-
vania Division and Montgomery Elevator Com-
pany and Service Employees International
Union, Local 36, AFL–CIO
Local No. 5, International Union of Elevator Con-
structors and National Elevator Industry, Inc.
and Stuart-Dean Co., Inc., Pennsylvania Divi-
sion and Service Employees International
Union, Local 36, AFL–CIO. Cases 4–CD–834
and 4–CD–843
April 23, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charges in this Section 10(k) proceeding were
filed May 1, 1992, by Stuart-Dean Co., Inc., Pennsyl-
vania Division (Stuart-Dean), and July 23, 1992, by
National Elevator Industry, Inc. (NEII), alleging that
the Respondent, Local No. 5, International Union of
Elevator Constructors (Local 5), violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
Stuart-Dean and Montgomery Elevator Company
(Montgomery) to assign certain work to employees it
represents rather than to employees represented by
Service Employees International Union, Local 36,
AFL–CIO (Local 36). The hearing was held August 3
and 24 and October 2, 14, and 22, 1992, before Hear-
ing Officer Joseph M. Cionzynski.
The National Relations Board has delegated its au-
thority 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
Stuart-Dean Co., Inc., Pennsylvania Division is a di-
vision of Stuart-Dean Co., Inc., a New York corpora-
tion, engaged in the business of refinishing, polishing,
and maintaining metal and marble, with its principal
place of business located at Philadelphia, Pennsylvania,
where during the 12 months preceding the hearing it
purchased goods and supplies valued in excess of
$50,000 from suppliers located outside of Pennsyl-
vania.
Montgomery Elevator Company is a Delaware cor-
poration engaged in the manufacture, installation, and
repair of elevators and escalators, with corporate head-
quarters in Moline, Illinois, and a local office in King
of Prussia, Pennsylvania. Montgomery has at all rel-
evant times had a contract to install and repair ele-
vators and escalators at the Philadelphia International
Airport, the only facility involved herein. During the
12 months preceding the hearing, Montgomery pur-
chased equipment and supplies valued in excess of
$50,000 directly from suppliers located outside of
Pennsylvania for use at the Philadelphia Airport job-
site.
The parties stipulate, and we find, that Stuart-Dean
and Montgomery are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Local 5 and Local 36 are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute1
Montgomery has been a party to a multiemployer
nationwide contract negotiated between NEII2 and the
IUEC for several decades. Its employees employed in
the Philadelphia area are represented by Local 5.
In late 1991, Montgomery secured a contract to per-
form a complete modernization of 34 elevators and es-
calators at the Philadelphia Airport. Montgomery em-
ployed its employees to perform the work involving
mechanical repairs and replacement of the equipment
and subcontracted the scratch removal and metal refin-
ishing work to Stuart-Dean, which specializes in refin-
ishing and polishing of metal and marble. Stuart-Dean
employs approximately 11 Local 36-represented em-
ployees.
In late 1991, Local 5-represented employees com-
menced construction and repair work at the airport. On
April 20, 1992,3 Stuart-Dean employees began per-
forming the scratch removal and metal refinishing
work.
On April 27, about 10 a.m., Local 5 Assistant Busi-
ness Agent James Martin advised Lloyd Ivie, Mont-
gomery’s project manager, that Local 5 employees
should be doing the work performed by Stuart-Dean
employees. Martin demanded that Montgomery at least
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
assign Local 5 members as ‘‘standbys’’ while the work
was being done. Ivie refused.
At lunchtime that day, Local 5-represented employ-
ees, who were performing mechanical work on an ele-
vator, locked the wooden barricade surrounding the el-
evator. Martin was present at the time. About 12:30
p.m., Stuart-Dean employee Kevin Kelly, who was
represented by Local 36, returned from lunch to con-
tinue his metal refinishing work on the cab interior of
an elevator. He discovered that the barricade had been
padlocked and that the equipment and materials he had
left inside the elevator had been placed outside of the
barrier unprotected. Martin and the two Local 5-rep-
resented employees who had been performing the me-
chanical work were standing nearby.
Kelly testified that he asked Martin why he had
been locked out and Martin replied that Kelly was
doing Local 5 work and that Kelly should speak to
Ivie about the situation. When Ivie was summoned,
Martin reiterated his claim that Kelly was doing Local
5 work. There is no evidence that the barricade had
been padlocked during lunch hour on previous days.
Martin claims that the Local 5 employees locked the
barricade for safety reasons and denies telling Kelly
that he was doing Local 5 work in response to his
question as to why the barricade was locked.
Shortly thereafter, James Basile, Stuart-Dean’s sales
representative, arrived at the jobsite, having been
called by Kelly. Martin stated to Basile that the work
in dispute was within Local 5’s jurisdiction. Basile
then contacted Local 5 Business Manager William
Fagan.
According to Basile, Fagan stated that day that he
believed Local 5 had a collective-bargaining agreement
with Stuart-Dean and warned that if Stuart-Dean did
not use Local 5-represented employees, Local 5 would
picket the jobsite. When Basile pointed out to Fagan
that Local 5-represented employees were not trained to
do the work, Fagan insisted that Stuart-Dean would
have to train them.
Meanwhile, Ivie contacted Montgomery Elevator
Assistant Vice President Rod Grant and told him that
Martin had said the Company could either hire Local
5-represented employees to watch the work being per-
formed by Stuart-Dean, or stop the job. Grant tele-
phoned Fagan to set up a meeting to resolve the mat-
ter.
Grant met with Fagan and Martin the next morning.
Fagan showed Grant what purported to be a collective-
bargaining agreement between Local 5 and Stuart-
Dean. According to Grant, Fagan said he would picket
the jobsite and other jobsites, if Montgomery continued
to use Stuart-Dean to perform the work. Grant related
the threat to Basile. On April 29, Grant advised the
chief executive officer of Stuart-Dean Co., Inc. of the
threat and stated that Stuart-Dean Co., Inc. would have
to resolve its dispute with Local 5 and in the meantime
would be barred from continuing its work at the air-
port. Grant stated that he took that action because he
did not want any picketing or work stoppage at the
jobsite. Fagan denies making any threat to picket but
testified that when Grant asked him if Local 5 would
strike, he responded, ‘‘[T]hat’s a possibility.’’
On May 5, 1992, Local 5 filed grievances against
Stuart-Dean and Montgomery alleging that Mont-
gomery was violating its Standard Agreement by sub-
contracting the disputed work to Stuart-Dean, and that
Stuart-Dean was not employing Local 5 members in
accordance with its Standard Agreement.
B. Work in Dispute
The disputed work involves the metal refinishing
and scratch removal work on elevators and escalators
for Stuart-Dean Co., Inc., Pennsylvania Division, at the
Philadelphia International Airport, Philadelphia, Penn-
sylvania.
C. Contentions of the Parties
Stuart-Dean, Montgomery, and NEII contend that
Local 5 locked out Stuart-Dean employee Kevin Kelly,
who is represented by Local 36, and threatened to
picket the jobsite with the object of coercing the reas-
signment of the work to employees represented by
Local 5. They contend that Local 36 should be award-
ed the work on the basis of area and industry practice,
employer preference, relative training and skills, and
economy and efficiency of operations.
Local 5 contends that there is no reasonable cause
to believe that Section 8(b)(4)(D) has been violated
and that the notice of hearing should be quashed.
Local 5 contends that it never locked out any Local 36
members from working at the jobsite and denies threat-
ening to picket the jobsite to obtain the work. If the
notice of hearing is not quashed, Local 5 contends that
the work should be awarded to the employees it rep-
resents based on the applicable collective-bargaining
agreements, industry and area practice, economy and
efficiency of operations, and relative skills.
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) has been violated and that the
parties have not agreed-upon a method for voluntary
resolution of the dispute. NEII, Montgomery, and Stu-
art-Dean have stipulated and Local 5 does not dispute
in its brief to the Board that there is no agreed-upon
method for voluntary adjustment of the dispute.
Local 5 contends that the lockout was for safety rea-
sons. Kelly testified, however, that when he asked why
he was locked out, Martin replied that Stuart-Dean was
1191ELEVATOR CONSTRUCTORS LOCAL 5 (STUART-DEAN CO.)
4 Martin denied telling Kelly that he was doing Local 5 work.
Martin and Fagan denied making any threats. It is well settled that
a conflict in testimony does not prevent the Board from proceeding
under Sec. 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 a violation. See, e.g., Electrical
Workers IBEW Local 400 (E. T. Electrical), 285 NLRB 1149 (1987).
Further, Fagan admits stating to Grant that a strike was a possibility
if Local 5-represented employees were not employed to perform the
disputed work.
5 Alternatively, Local 5 contends that Montgomery is the primary
employer and is bound by the IUEC’s Standard Agreement. We re-
ject Local 5’s argument that Montgomery controlled the disputed
work and find instead that subcontractor Stuart-Dean exercised con-
trol over assignment of the work to its employees and did not sur-
render to Montgomery its right to choose its employees. See Oper-
ating Engineers Local 139 (McWad, Inc.), 262 NLRB 1300, 1301–
1302 (1982).
doing Local 5 work and did not mention any safety
concerns. Further, only 2 hours prior to the lockout,
Martin confronted Ivie to demand that Local 5-rep-
resented employees be assigned the work. We find that
there is reasonable cause to believe that Local 5 locked
out Stuart-Dean employee Kelly with an unlawful ob-
ject of obtaining the disputed work for the employees
it represents.
We also find reasonable cause to believe that Local
5 Representative Fagan threatened Basile and Grant
that Local 5 would picket the jobsite unless they began
employing Local 5-represented workers.4
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon 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 following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
There are no relevant Board certifications.
Stuart-Dean argues that its contract with Local 36
covers the disputed work. Local 5 claims that it has a
contract with Stuart-Dean that covers the work.5 Stu-
art-Dean argues that the contract with Local 5 covered
only employees of a now-defunct division and has
never been applied to the employing entity involved in
this dispute.
We find that neither contract clearly covers the dis-
puted work. We therefore find that this factor does not
favor the assignment of the disputed work to either
party.
2. Company preference and past practice
Stuart-Dean has assigned the disputed work to Local
36-represented employees and is satisfied with their
work. Additionally, Stuart-Dean has used Local 36-
represented employees to perform similar work at var-
ious jobsites in the area. Stuart-Dean prefers to con-
tinue assigning this work to employees represented by
Local 36.
We find the factor of employer preference and past
practice favors assigning the disputed work to employ-
ees represented by the Local 36.
3. Area practice
The weight of the evidence indicates that elevator
construction firms routinely subcontract scratch re-
moval and refinishing work to specialty contractors
such as Stuart-Dean and that Stuart-Dean and its pri-
mary competitors in the area employ Local 36-rep-
resented employees exclusively to perform the type of
work in dispute. Although there was testimony by
Local 5 witnesses indicating that a few Local 5-rep-
resented employees performed such work on occasion
for other employers, most of that work was either inci-
dental to the installation of new equipment, involved
work performed in the shop, or did not involve the
same equipment used in the job in dispute. Accord-
ingly, the factor of area practice favors assigning the
work in dispute to employees represented by Local 36.
4. Relative skills
The evidence indicates that Local 36-represented
employees possess skills, training, and experience in
performing the disputed work that are greater than
those possessed by Local 5-represented employees.
Stuart-Dean’s Local 36-represented employees spent
from 3 to 5 years in training to progress from a helper
to a journeyman in metal refinishing work. Stuart-Dean
employees were trained in the use of machines and
chemicals and Stuart-Dean has issued safety manuals
to its employees governing the use of its equipment.
Local 5-represented employees, by contrast, were
largely unfamiliar with the chemicals used by Stuart-
Dean employees to perform refinishing work. The im-
proper use of the equipment and chemicals could cause
costly damage to the metal and also cause personal in-
jury to individuals.
Although Local 5 claims that employees it rep-
resents were skilled in performing the work in dispute,
Fagan admitted that as few as 12 out of 875 are ‘‘com-
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
petent’’ to perform metal refinishing and scratch re-
moval. Accordingly, we find that this factor favors an
assignment of the disputed work to employees rep-
resented by Local 36.
5. Economy and efficiency of operations
We find that training would generally be required
for Local 5-represented employees to perform the dis-
puted work, whereas all of Stuart-Dean’s Local 36-rep-
resented employees are trained in the work. Accord-
ingly, because the time required to perform the job
would be less if Local 36-represented employees were
assigned the work, we find that this factor favors as-
signing the disputed work to employees represented by
Local 36.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Service Employ-
ees International Union Local 36, AFL–CIO are enti-
tled to perform the work in the dispute. We reach this
conclusion relying on employer preference and past
practice, area practice, relative skills, and economy and
efficiency of operations.
In making this determination, we are awarding the
work to employees represented by Service Employees
International Union Local 36, AFL–CIO, not to that
Union or its members.
Scope of the award
Stuart-Dean contends that the scope of the award
should include all metal refinishing and restoration
work performed by it. Generally, in order to support
a broad, areawide award, there must be evidence that
the disputed work has been a continuing source of con-
troversy in the relevant geographic area, that similar
disputes are likely to recur, and that the charged party
has a proclivity to engage in unlawful conduct to ob-
tain work similar to the disputed work. Electrical
Workers IBEW Local 104 (Standard Sign), 248 NLRB
1144, 1148 (1980). We do not find that the record sup-
ports awarding a broad order. Accordingly, our deter-
mination is limited to the controversy that gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Stuart-Dean Co., Inc., Pennsylvania
Division, represented by Service Employees Inter-
national Union, Local 36, AFL–CIO, are entitled to
perform metal refinishing and scratch removal work on
elevators and escalators for Stuart-Dean Co., Inc.,
Pennsylvania Division, at the Philadelphia International
Airport, Philadelphia, Pennsylvania.
2. Local No. 5, International Union of Elevator Con-
structors is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force Stuart-Dean Co.,
Inc., Pennsylvania Division, or Montgomery Elevator
Company to assign the disputed work to employees
represented by it.
3. Within 10 days from this date, Local No. 5, Inter-
national Union of Elevator Constructors shall notify
the Regional Director for Region 4 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 the deter-
mination.