Iron Workers California District Council (Madison Industries)

National Labor Relations Board - Board Decisions

Apr 30, 1992

307 N.L.R.B. 405 (N.L.R.B. 1992)

405
307 NLRB No. 59
IRON WORKERS CALIFORNIA DISTRICT COUNCIL (MADISON INDUSTRIES)
1 All dates are in 1991 unless otherwise indicated.
District Council of Iron Workers of the State of
California and Vicinity and Madison Indus-
tries, a California Corporation and Sheet Metal
Workers’ International Association, Local
Union No. 162. Case 21–CD–601
April 30, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed October 16, 1991,1 by the Employer, Madison In-
dustries, a California Corporation, alleging that the Re-
spondent, District Council of Iron Workers of the State
of California and Vicinity (Iron Workers), violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to employees rep-
resented by Sheet Metal Workers’ International Asso-
ciation, Local Union No. 162 (Sheet Metal Workers
Local 162). The hearing was held December 5 before
Hearing Officer John J. Hatem.
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 California corporation with its of-
fice and principal place of business in Los Angeles,
California, is engaged in the fabrication and installa-
tion of metal structures for commercial customers. In
the 12 months prior to the hearing, it purchased and
caused to be delivered to its Los Angeles facility
goods and materials valued in excess of $50,000, di-
rectly from enterprises located outside the State of
California. 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 Sheet Metal
Workers Local 162 and the Iron Workers are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is one of six wholly owned subsidi-
aries of its parent company, John S. Frey Enterprises,
a California corporation (Parent Company). The three
officers of the Parent Company are also officers of
each of the subsidiaries. The day-to-day operations of
each subsidiary are independently controlled by that
subsidiary’s general manager/vice president (general
manager), who is hired by the Parent Company.
The Employer performs field construction work in
California and Hawaii. Prior to June 30, 1986, the Em-
ployer had a collective-bargaining agreement with
Sheet Metal Workers’ International Association Local
Union No. 108 (Sheet Metal Workers Local 108). The
Employer also has a history of collective-bargaining
agreements with the Iron Workers. In or about March
1990, Sheet Metal Workers Local 108 was involved in
a labor dispute with the Employer and pulled its mem-
bers off the Employer’s jobsites. Shortly thereafter, on
March 15, 1990, the Employer entered into a collec-
tive-bargaining agreement with the Iron Workers to
cover the work abandoned by Sheet Metal Workers
Local 108. This agreement is effective through June
30, 1992.
One of the Parent Company’s other subsidiaries,
Madison Industries, an Arizona corporation (Madison
Arizona), has a collective-bargaining agreement with
another Sheet Metal Workers local, Sheet Metal Work-
ers’ International Association Local Union No. 359
(Sheet Metal Workers Local 359).
In or about May or June 1990, Don Whipple, busi-
ness representative for Sheet Metal Workers Local
162, telephoned John Frey Jr. (Frey), the Employer’s
general manager, and told him that he had witnessed
the Employer’s crews erecting a service station in the
Sacramento area, that he felt such work belonged to
his union, and that he would like the Employer to em-
ploy members of Sheet Metal Workers Local 162 on
such jobs in the area. Frey told Whipple that charges
had been filed against the Employer by Sheet Metal
Workers Local 108, and that he did not care to discuss
anything with him until those charges were resolved.
Whipple called Frey again in or about February or
March and repeated his request for assignment of the
service station work. Frey again refused to discuss
Whipple’s request. In June, Whipple called Frey again
regarding the service station work and suggested that
the Employer was contractually obligated to reassign
the work to Sheet Metal Workers Local 162, stating
‘‘You’re Madison Arizona, and you have an agree-
ment.’’ Frey responded that he had nothing to do with
Madison Arizona and their labor agreements.
By letter dated June 5, Sheet Metal Workers Local
162 filed a grievance against Madison Arizona with
the Sacramento Valley Sheet Metal Joint Adjustment
Board (Joint Adjustment Board). By letter dated June
12, Madison Arizona requested that the hearing con-
cerning the grievance be canceled. The letter stated
that the Joint Adjustment Board does not have jurisdic-
tion to decide grievances filed by Sheet Metal Workers
Local 162 against Madison Arizona because Madison
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Joint Adjustment Board alternatively directed ‘‘Madison In-
dustries’’ to pay $3000 to the Local 162 training fund if, within 30
days, it complied with the Joint Adjustment Board’s decision and
agreed to employ members of Sheet Metal Workers Local 162 on
future station renovations.
3 John S. Frey is the president of the Parent Company and the six
subsidiaries. John S. Frey Jr. (Frey), the Employer’s vice
president/general manager, is not an officer or an employee of the
Parent Company or Madison Arizona.
4 Sheet Metal Workers Local 162 argues that the record disclosed
that it has claimed only the work performed at four service stations
in Sacramento, California, and thus the work in dispute involves
only the work performed by the Employer at these four service sta-
tions. The Iron Workers argues that the work in dispute involves
work performed in all areas of the Iron Workers’ jurisdiction, which
is in California and Nevada. The Employer argues that the descrip-
tion of work as set forth in the notice of hearing, and which is also
set forth above, most accurately describes the work in dispute. The
Employer performs its work in California and Hawaii. Although
Sheet Metal Workers Local 162 has claimed only the work at four
service stations, it does not disclaim interest in any future work per-
formed by the Employer. Further, we note that the basis for its
claim, i.e., that the Employer and Madison Arizona are a single em-
ployer, is one that could equally serve as a basis for any other serv-
ice station work performed by the Employer. The Iron Workers,
based on its collective-bargaining agreement, claims all of the serv-
ice station work performed by the Employer in California and Ne-
vada. Therefore, as the Iron Workers’ collective-bargaining agree-
ment and the single employer contention of Sheet Metal Workers
Local 162 both provide a basis for claiming any of the Employer’s
service station work performed in California, and as neither labor or-
ganization has disclaimed any of the Employer’s service station
work, we find that the description of work that is set forth above,
and in the notice of hearing, is the most accurate description of the
work in dispute.
Member Oviatt would limit the Order in this case to the four Cali-
fornia service stations. He finds no adequate predicate for a broad
award on the facts of this case.
Arizona does not have a collective-bargaining agree-
ment with Sheet Metal Workers Local 162 and because
Madison Arizona had not subcontracted or assigned
any work in California. On June 17 the Joint Adjust-
ment Board held a hearing concerning the grievance.
Neither the Employer nor Madison Arizona were rep-
resented at the hearing. The Joint Adjustment Board
determined that the Employer and Madison Arizona
‘‘are one in the same entity,’’ and accordingly directed
‘‘Madison Industries’’ to pay $60,000 to the Local 162
training fund.2
By letter dated September 17, Robert Jesinger, Sheet
Metal Workers Local 162’s attorney, wrote to ‘‘John
Frey’’ at Madison Arizona.3 Jesinger stated that Sheet
Metal Workers Local 162 would file a lawsuit if
‘‘Madison Industries’’ did not comply with the deci-
sion of the Joint Adjustment Board. Madison Arizona
sent a copy of this letter to Frey.
Also in September, Frey had a conversation with
Iron Workers Business Representative Sven Sorensen
about the Employer’s work in the Sacramento area.
Specifically, Frey told Sorensen that the Sheet Metal
Workers were claiming this work, that the Employer
was feeling pressure to use employees represented by
Sheet Metal Workers Local 162, and that the Employer
might in fact have to use those employees. Sorensen
reminded Frey that the Employer had a collective-bar-
gaining agreement with the Iron Workers covering the
Employer’s service station work in Sacramento.
Sorensen further stated that the Iron Workers might
consider picketing the Employer’s jobs or taking other
action to prevent the reassignment of the work. A few
days later, Frey received a call from Iron Workers
President Zampa and had essentially the same con-
versation with him that he had had with Sorensen.
Zampa told Frey that he expected the Employer to live
up to its end of the agreement, and that if the Em-
ployer proceeded with its service station work using
sheet metal workers, Zampa would pull employees rep-
resented by the Iron Workers off the Employer’s jobs.
By letter dated October 23, Iron Workers Attorney
Victor Van Bourg informed Steven Schneider, the Em-
ployer’s attorney, that if employees represented by the
Iron Workers were taken off of the Employer’s
jobsites, the Iron Workers ‘‘would take every appro-
priate means, legal and otherwise, against the Com-
pany.’’
B. Work in Dispute
The work in dispute involves the installation, erec-
tion, and renovation of metal service station structures
for British Petroleum and other customers in the State
of California.4
C. Contentions of the Parties
The Employer contends that reasonable cause exists
to believe that the Iron Workers violated Section
8(b)(4)(D) of the Act and that the work in dispute
should be awarded to the employees represented by the
Iron Workers. The Employer bases its contention on its
collective-bargaining agreement with the Iron Workers,
its preference and past practice, relative skills, and
economy and efficiency of operations.
The Iron Workers joins in the Employer’s conten-
tion that the work in dispute should be awarded to em-
ployees represented by the Iron Workers.
Sheet Metal Workers Local 162 contends that rea-
sonable cause does not exist to believe that Section
8(b)(4)(D) of the Act has been violated because it has
only pursued its contractual remedies and the Iron
Workers has not done anything that would constitute
a threat within the meaning of Section 8(b)(4)(ii) of
the Act. Sheet Metal Workers Local 162 also contends
that this matter is now moot because the work in dis-
pute has been completed. Further, Sheet Metal Work-
ers Local 162 contends that if the Employer and Madi-
son Arizona are separate employers, then there are no
competing claims for work because it has only claimed
work performed by Madison Arizona. Sheet Metal
407IRON WORKERS CALIFORNIA DISTRICT COUNCIL (MADISON INDUSTRIES)
5 We deny Sheet Metal Workers Local 162’s motion to quash the
notice of hearing. We reject its argument that no jurisdictional dis-
pute exists because the work at the four service stations has been
completed. The mere fact that disputed work has been completed
does not render a jurisdictional dispute moot where nothing indicates
that similar disputes are unlikely to recur. Operating Engineers
Local 150 (Martin Cement), 284 NLRB 858, 860 fn. 4 (1987). As
discussed above, the work in dispute involves work throughout the
State of California and neither Sheet Metal Workers Local 162 nor
the Iron Workers have disclaimed interest in any of this work in the
future. Further, we reject the argument made by Sheet Metal Work-
ers Local 162 that no competing claims for work exist because it
has made no claim against the Employer, but rather only against
Madison Arizona. This argument has no merit because Sheet Metal
Workers Local 162 has in fact made a competing claim for the work
in dispute, has based its claim on its contention that the Employer
and Madison Arizona are a single employer, and has not disclaimed
interest in any of the work in dispute, or in any such work in the
future.
Member Oviatt agrees that a dispute is not rendered moot by com-
pletion of the work and that there were competing claims to the
work.
Workers Local 162 alternatively argues that, on the
merits of the dispute, the factors of collective-bar-
gaining agreements, employer preference and past
practice, area and industry practice, and economy and
efficiency of operations favor the award of this work
to employees represented by Sheet Metal Workers
Local 162.
The parties have stipulated that they have not agreed
on a method for the voluntary adjustment of the dis-
pute.
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 there is reasonable cause to be-
lieve Section 8(b)(4)(D) of the Act has been violated
and that the parties have not agreed upon a method for
the voluntary adjustment of the dispute. As discussed
above, Business Representative Sorensen told Frey that
the Iron Workers might consider picketing the Em-
ployer’s jobsites to prevent the reassignment of the
Employer’s work; Iron Workers President Zampa told
Frey he would pull employees represented by the Iron
Workers off the Employer’s jobs if any work was reas-
signed to employees represented by the Sheet Metal
Workers; and Iron Workers Attorney Van Bourg stated
to the Employer’s attorney that if any work was as-
signed to employees represented by the Sheet Metal
Workers, the Iron Workers would ‘‘take every appro-
priate means, legal and otherwise, against the Com-
pany.’’ We find reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and that, as
stipulated, there exists no agreed-upon method of vol-
untary 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 determina-
tion.5
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 a deter-
mination of the dispute.
1. Collective-bargaining agreements
The Employer has had a history of collective-bar-
gaining agreements with the Iron Workers. The Em-
ployer’s most recent collective-bargaining agreement
with the Iron Workers, entered into on March 15,
1990, is effective through June 30, 1992. The agree-
ment covers all work in connection with field fabrica-
tion and/or erection of structural, ornamental, and rein-
forcing steel work.
The Employer does not have, and has never had, a
collective-bargaining agreement with Sheet Metal
Workers Local 162. The Employer has had collective-
bargaining agreements with Sheet Metal Workers
Local 108. Its most recent agreement with Sheet Metal
Workers Local 108 terminated June 30, 1986.
The basis for Sheet Metal Workers Local 162’s
claim to the work in dispute derives from a collective-
bargaining agreement between Madison Arizona and
Sheet Metal Workers Local 359. Sheet Metal Workers
Local 162, relying on McKinstry Co. v. Sheet Metal
Workers Local 16, 859 F.2d 1382 (9th Cir. 1988), ar-
gues that the agreement between Madison Arizona and
Sheet Metal Workers Local 359 both has
extraterritorial effects, extending to work performed by
Madison Arizona in the jurisdiction of Local 162, and
confers benefits that may be enforced by a sister local
such as Local 162 against Madison Arizona. Local 162
further argues that Madison Arizona and Madison
California (the Employer) are one and the same entity,
so that work performed by the latter comes within the
agreement. We do not pass on the validity of the con-
tractual construction that underlies this theory, but find
that the agreement is not relevant to the instant dispute
because, for the reasons set forth below, the Employer
and Madison Arizona are separate employers and enti-
ties.
Single-employer status is determined by examining
whether the entities have common ownership or com-
mon financial control, common management, interrela-
tion of operations, and centralized control of labor re-
lations. Radio Union Local 1264 v. Broadcast Service,
380 U.S. 255 (1965). Although the Employer and
Madison Arizona are commonly owned by the Parent
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company, they possess none of the other indicia of
single-employer status. The Employer’s day-to-day op-
erations are independently controlled by Frey, the Em-
ployer’s general manager, and Madison Arizona’s day-
to-day operations are independently controlled by its
general manager, John Sentell Jr. Each general man-
ager has independent and exclusive financial control
over his respective operations, and each general man-
ager independently exercises exclusive control over his
respective company’s labor relations. The salaries of
the general managers are paid by their respective sub-
sidiaries. The Parent Company does not interfere with,
or exercise any control over, the financial operations or
labor relations of either the Employer or Madison Ari-
zona.
Additionally, there is no interrelation of operations
between the Employer and Madison Arizona. They
each separately bid for, and invoice, their work for
their customers, and the limited dealings they have
with each other are at arm’s length. Although the two
companies have purchased items from each other, the
purchases are paid for by the purchasing company, and
the price, which includes a profit to the selling com-
pany, is set in arm’s-length negotiations.
We conclude that, as the Employer and Madison Ar-
izona do not have common financial control, common
management, interrelation of operations, or centralized
control of labor relations, they do not constitute a sin-
gle employer. Consequently, Madison Arizona’s col-
lective-bargaining agreement with Sheet Metal Work-
ers Local 359 is not a determining factor in this juris-
dictional dispute. We find, however, that, as the Em-
ployer and the Iron Workers do have a collective-bar-
gaining agreement covering the work in dispute, the
factor of collective-bargaining agreements favors an
award to employees represented by the Iron Workers.
2. Employer preference and past practice
Prior to March 1990, the Employer performed its
field construction work with 50 percent of its employ-
ees represented by Sheet Metal Workers Local 108,
and 50 percent of its employees represented by the
Iron Workers. Since March 1990, the Employer has
performed this work exclusively with employees rep-
resented by the Iron Workers. Frey testified that the
Employer prefers to assign the work in dispute to em-
ployees represented by the Iron Workers. We find that
the factor of employer preference and past practice fa-
vors an award to employees represented by the Iron
Workers.
3. Area and industry practice
Sheet Metal Workers Local 162 Business Represent-
ative Whipple testified that companies he has observed
perform service station construction and renovation
work using crews consisting half of employees rep-
resented by the Sheet Metal Workers and half of em-
ployees represented by the Iron Workers. He testified
that there was a natural division in the type of work
performed on these mixed crews, and that the employ-
ees represented by the Iron Workers were the lead per-
sons ‘‘setting up any and all of the structural mem-
bers’’ and employees represented by the Sheet Metal
Workers were the lead persons ‘‘towards the finish of
the product.’’ Whipple also testified that a nonunion
company in the area, Beamon Corporation, uses com-
posite crews consisting of nonunion sheet metal work-
ers and nonunion ironworkers.
Clemente Cobo, business agent for Sheet Metal
Workers Local 108, testified that two of the Employ-
er’s competitors, Bryce Parker, Inc. and Besteel Indus-
tries, Inc., use composite crews consisting of employ-
ees represented by the Sheet Metal Workers and em-
ployees represented by the Iron Workers. We find that
the factor of area and industry practice does not favor
either an award to employees represented by the Iron
Workers or an award to employees represented by
Sheet Metal Workers Local 162.
4. Relative skills
Frey, the Employer’s general manager, testified that
the primary skills of employees represented by the Iron
Workers are rigging and erection of steel structures of
the kind involved in the work in dispute and are the
‘‘forte’’ of employees represented by the Iron Workers
rather than that of employees represented by the Sheet
Metal Workers. Frey further testified that rigging and
moving of steel structures at service stations involves
working with a structure that weighs approximately
40,000 pounds, and that a skilled rigging process is
necessary to ensure the safety of employees on the
site. Madison Arizona General Manager Sentell testi-
fied that the Iron Workers’ apprenticeship program
taught employees represented by the Iron Workers how
to safely perform rigging.
As noted above, prior to March 1990, the Employer
used composite crews for the work of the kind in dis-
pute, and there was a natural division of the type of
work performed by these crews. The Employer pro-
vided training for employees represented by Sheet
Metal Workers Local 108 for the type of work that
they did on these projects. Since March 1990, the Em-
ployer has performed this work exclusively with em-
ployees represented by the Iron Workers and has
trained these employees to do the work previously per-
formed by the employees represented by Sheet Metal
Workers Local 108. There is no evidence as to wheth-
er employees represented by Sheet Metal Workers
Local 162 have been trained to safely rig and move
steel structures. We find that the factor of relative
skills favors an award of the disputed work to employ-
ees represented by the Iron Workers.
409IRON WORKERS CALIFORNIA DISTRICT COUNCIL (MADISON INDUSTRIES)
5. Economy and efficiency of operations
Frey testified that employees represented by the
Sheet Metal Workers have never performed more than
one half of the Employer’s field construction work in
the State of California, while employees represented by
the Iron Workers have performed all the Employer’s
field construction work in the State of California since
March 1990. Frey further testified that he did not think
that the skills and abilities of employees represented by
the Sheet Metal Workers would bring more efficiency
to the Employer’s field and shop work. We find that
Frey’s testimony is little more than a reiteration of the
Employer’s preference. To the extent it focuses on
ability to do the whole job, it focuses on evidence we
have already considered under the relative skills factor.
Consequently, the factor of economy and efficiency of
operations favors an award of the disputed work to
neither group of employees.
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by the Iron Workers
are entitled to perform the work in dispute. We reach
this conclusion relying on the Iron Workers’ collec-
tive-bargaining agreement, employer preference and
past practice, and relative skills. In making this deter-
mination, we are awarding the work to employees rep-
resented by the Iron Workers, not to that Union or its
members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Madison Industries, a California Cor-
poration, represented by District Council of Iron Work-
ers of the State of California and Vicinity, are entitled
to perform the installation, erection, and renovation of
metal service station structures for British Petroleum
and other customers in the State of California.