Local 80, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Mar 21, 1974

209 N.L.R.B. 816 (N.L.R.B. 1974)

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 80, Sheet Metal Workers International Associa-
tion, AFL-CIO and Local 636, United Association
of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada, AFL-CIO and Superior Heating Compa-
ny. Cases 7-CD-279 and 7-CD-280
March 21, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Superior Heating Company,
alleging that Local 80, Sheet Metal Workers Interna-
tional Association , AFL-CIO, herein called Local
80, and Local 636, United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO , herein called Local 636 , have violated
Section 8(b)(4)(D) of the Act. A duly scheduled
hearing was held before Hearing Officer Theodore C.
Niforos on April 19, 20, 24 , and 25 , and May 10,
1973.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
All parties including the Employer , the Sheet Metal
Workers, the Pipe Fitters , and Sheet Metal and Air
Conditioning Contractors National Association,
Metropolitan Detroit Chapter (SMEAD), which was
permitted to intervene , appeared at the hearing and
were afforded full opportunity to be heard, to
examine and cross -examine witnesses , and to adduce
evidence on the issues.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this proceeding, includ-
ing the briefs of Local 80 and Local 636 and the joint
brief of the Employer and the Intervenor , the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, Superior Heating Company, is a
Michigan corporation engaged in the building and
construction industry as an installer of sheet metal
and heating, ventilating, and air-conditioning equip-
ment. During the calendar year 1972, the Employer's
gross annual"receipts exceeded $500,000. During the
209 NLRB No. 116
same period, the Employer purchased and caused to
be transported to the State of Michigan jobsites
goods and materials valued in excess of $500,000,
which goods and materials were delivered to said
Michigan sites directly from sources outside the State
of Michigan. The parties stipulated, and we find, that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Local 80,
Sheet Metal Workers International Association,
AFL-CIO, and Local 636 , United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada , AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
For several years prior to the instant dispute, the
Employer has been engaged in the business of
installing heating and cooling units at various
multiunit residential construction jobsites. The in-
stant dispute involves the installation of the heating
and cooling units at a 10-story apartment building
known as Northgate Towers in Royal Oak Town-
ship, Michigan. By letter dated December 26. 1972,
from Donald Flood, business agent for Local 80, the
Employer was advised that a controversy had arisen
with respect to the installation of the heating and
cooling units at Northgate. Local 80 requested that
the Employer abide by an agreement reached
between the Sheet Metal Workers International and
the Pipe Fitters International in 1956, wherein it was
agreed between the two International organizations
that the installation of certain heating and cooling
units would be installed by composite crews consist-
ing of an equal number of sheetmetal workers and
pipefitters. By letter dated January 9, 1973, Local 80
was advised by SMEAD Representative Asher that
the Employer historically installed these units using
sheetmetal workers exclusively and that the Employ-
er would continue this practice.
On or about February 22, 1973, Flood and
Williams, business representative for Local 636,
appeared at the jobsite. Portney, the Employer's
president was notified that there was a work
stoppage at the site. Upon arrival at the site, Portney
found that his employees were not unloading the
LOCAL 80, SHEET METAL WORKERS
units that had just been delivered in two trailers.
Portney asked if the men were going to work and
attempted to persuade them to continue working.
Flood told the employees that he could not tell them
not to work, but that they knew what the Union's
wishes were. When Portney asked if the men would
unload the trailers, they refused and when'Portney
said that he would unload them himself, Williams
told him that if he unloaded the units Local 636
would put a picket line up at the entire project.
Williams then left.
Later in the day, Flood returned and in the course
of a conversation with Portney and Asher, who had
also arrived at the site, Flood stated that Local 636
was demanding the right to install all of the units on
the last 5 floors of the 10-story building. In essence, it
was claiming that the installation of the first five
floors having been done with sheetmetal workers
exclusively, rather than with composite crews, pipe-
fitters were entitled to the exclusive right to install
the last five floors. Flood also advised Portney that
he agreed with this position. After 1973. conversa-
tions with the employees, the employees left the
jobsite.
B. Work in Dispute
The work presently in dispute concerns the actual
installation of heating and cooling units. There is no
dispute as to the pipework performed that brings the
fuel supply to the unit or the sheet metal duct work
that disperses the heated or cooled air into the
apartments.
C. Contention of the Parties
The Employer contends that its assignment of the
work to sheet metal workers should be upheld. In this
regard, the Employer urges the following factors:
employer preference, efficiency and economy of
operations, the effect on the crafts involved, contract
provisions, and area practice.
Local 80 and Local 636 contend that there is no
dispute as to the assignment of the work, Local 80
having disclaimed the work to be done on the
remaining five floors, that there is an agreed-upon
method to resolve the dispute, and that, pursuant to
the Employer's contract with Local 80, Local 636 is
entitled to the work.
D. Applicability of the Statute
The charge, which was duly investigated by the
Regional Director, alleges a violation of Section
8(b)(4)(D) of the Act. The Regional Director was
817
satisfied on the basis of such investigation that there
was reasonable cause to believe that a violation had
been committed and therefore directed that a hearing
be held in accordance with Section 10(k) of the Act.
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 there is no agreed-upon method for voluntary
adjustment of the dispute. On the basis of the entire
record, including the refusal of Local 80's members
to perform any further services for the Employer and
the threat of Local 636 to picket the entire project if
the Employer even attempted to unload the units in
question , we find that there is reasonable cause to
believe that a violation of the Act occurred. At the
same time , we do not agree with the Unions that
there is an agreed-upon method for resolving the
dispute, that it has been resolved by agreement
between the two Unions, or that Local 80 has
effectively disclaimed the work in question. The
Unions, in essence , contend that in 1956 their
respective International Unions entered into an
agreement whereby work of this nature would be
done by composite crews and that, by its contract
with Local 80, the Employer agreed to be bound by
this International agreement . The Employer's con-
tract effective June 1, 1972, following earlier con-
tracts between the Employer and Local 80, contains
the following:
Agreements, national in scope , between Sheet
Metal Workers International Association and
other International Unions, covering work juris-
diction and the assignment , allocation and divi-
sion of work among employees represented for
the purposes of collective bargaining by such
labor organizations , shall be respected and
applied by the Employer, provided such agree-
ments have been consummated with the knowl-
edge of and without objections from Sheet Metal
and Air Conditioning Contractors National Asso-
ciation, Inc.
Notwithstanding this contractual clause, the record
clearly shows that for the past several years the
Employer, as well as other heating and air-condition-
ing contractors engaged in residential construction in
the Detroit area , has installed these combined units
in multiunit residential construction using only
members of Local 80, without any objection or
complaint from either Local 80 or Local 636. In such
circumstances , and in the absence of any evidence
that the 1956 agreement between the International,
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unions, or any addendums thereto, was consummat-
ed with notice to the Employer's national associa-
tion, we find that the evidence is insufficient to
support the Union's contention that the matter has
been resolved by contract between all of the parties.'
As to the Unions' contention that this matter is
subject to resolution through Joint Board proceed-
ings, the record shows that none of the parties hereto
has attempted to submit this dispute to the Joint
Board, and there is a substantial question as to
whether the Employer herein has agreed to be bound
by any Joint Board decision. Accordingly, we find on
the record before us that there is no agreed-upon
method for voluntary adjustment of the dispute.
As to Local 80's alleged disclaimer of the work in
question, it is clear from the record that Local 80 is
only disclaiming this work in line with the agreement
between the two International Unions, and that it is
not otherwise disclaiming the work itself. In addition,
the record clearly shows that the Employer's employ-
ees desired to do the work. In such circumstances, we
find that there has been no effective disclaimer on
the part of Local 80.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to and balancing all
relevant factors. The following factors are relevant in
making the determination of the dispute before us:
1. Certifications and collective-bargaining
agreements
There is no Board certification determining the
bargaining representative for the employees assigned
to perform the work in dispute. In addition none of
the labor organizations involved herein has been
certified by the Board as the collective-bargaining
representative for a unit of the Employer's employ-
ees.
At no time material herein has the Employer been
a party to a collective-bargaining agreement with
Local 636 of the Pipe Fitters. The Employer has been
a party to a collective-bargaining agreement with
Local 80 for the past several years, and during this
entire period of time the Employer has performed the
disputed work exclusively with sheetmetal workers
pursuant to its contract and practice with that
Union.
2. Employer's assignment and past practice
As noted above, the Employer , during the entire
period involved herein, has assigned the work in
question to sheetmetal workers. This assignment was
predicated in part on its evaluation of the skills
possessed by individuals represented by Local 80,
and its conclusion that its practice and the practice
of the industry in general involving similar work
favored the award of work to the individuals
represented by Local 80 of the Sheet Metal Workers
Union.
3. Relative skills, efficiency, and economy of
operations
The Employer strongly favors an award to its
employees, several of whom have been employed for
years and represented by Local 80, because of their
skills, experience, and availability to the Employer.
The work involved consists of hauling, handling, and
installing combination heating and cooling units in
individual apartments in multiunit residential build-
ings and thereafter connecting the units themselves
to the fuel supply source on the one end and the duct
work into the apartment unit on the other end. While
it is true that the pipefitters could also do this work,
the record shows that the installation actually
requires very little time and that, if the Employer
were to employ pipefitters for the installation of these
units, the Employer would be unable to use these
employees in its primary work, the installation of the
internal duct work, thereby causing the Employer to
have in its employ and on its payroll employees that
would not be performing any services during a
portion of the period for which they would be paid.
In these circumstances, we are persuaded that the
factors of skill, availability of workers, efficiency,
and economy of operations favor the award of the
work to employees who are members of or represent-
ed by Local 80 of the Sheet Metal Workers Union.
Conclusion
Upon the entire record in this proceeding and after
a full consideration of all of the relevant factors,
particularly the contractual relationship between the
Employer and Local 80, the Employer's practice as
well as area practice, the nature of the work involved,
and the skills required, we conclude that the
employees of the Employer who are members of or
are represented by Local 80 are entitled to the work
in question and we shall determine the dispute in
their favor. In making this determination, we award
the work to the employees of the Employer who are
represented by Local 80, but not to that Union or its
members.
1 Local 150, International Union of Operating Engineers, AFL-CIO
(Components Inc), 197 NLRB 569.
LOCAL 80, SHEET METAL WORKERS 819
IV. SCOPE OF FHE DE'1ERMINATION
The Employer and Intervenor contend that any
award of the work in dispute should be extended to
an areawide work assignment. Based on the particu-
lar facts present in this case, we do not agree. There
is nothing in the record before us to indicate that
either Local 80 or Local 636 will not honor and abide
by the award of the disputed work herein. In
addition, while there was no evidence presented to
explain away why the two Unions waited several
years to enforce what they claim is a contract right,
the record testimony indicates that, in the industrial
and commercial construction fields, the employers in
this area use composite crews in installing heavy-
duty heating and air-conditioning units. Accordingly,
we hold that the work in dispute subject to our award
is the hauling, handling, and installing of combina-
tion heating and air-conditioning units by the
Employer at its Northgate Towers jobsite in Royal
Oak Township, Michigan.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of the
Dispute:
1. Employees employed by Superior Heating
Company, who are members of or represented by
Local 80, Sheet Metal Workers International Associ-
ation, AFL-CIO, are entitled to perform the work in
dispute which involves the hauling, handling, and
installing of heating and air-conditioning units by the
Employer at its Northgate Towers jobsite in Royal
Oak Township, Michigan.
2. Local 80, Sheet Metal Workers International
Association, AFL-CIO, and Local 636, United
Association of Journeymen and Apprentices of
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, are not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require Superior Heating Company, Detroit,
Michigan, to assign the above work, or any portion
thereof, to pipefitters represented by Local 636.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 80, Sheet Metal
Workers International Association, AFL-CIO, and
Local 636, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CI-
O, shall notify the Regional Director for Region 7, in
writing, whether or not they will refrain from forcing
or requiring Superior Heating Company, by means
proscribed by Section 8(b)(4)(D), to assign the work
in dispute in a manner inconsistent with the above
determination.