Local Un. No. 55, Sheet Metal Wkrs

National Labor Relations Board - Board Decisions

Sep 24, 1974

213 N.L.R.B. 479 (N.L.R.B. 1974)

LOCAL UN. NO 55 , SHEET METAL WKRS. 479
Local Union No. 55, Sheet Metal Workers Internation-
al Association, AFL-CIO and Gilbert L . Phillips,
Inc. and Suffolk County District Council of Carpen-
ters, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 29-CD-163
District Council of Carpenters , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO
(hereafter Carpenters ), are labor organizations within
the meaning of Section 2(5) of the Act.
September 24, 1974
DECISION AND ORDER QUASHING NOTICE
OF HEARING
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing charges filed by Gilbert L. Phillips, Inc. (here-
after called the Employer or Phillips), alleging that
Sheet Metal Workers Local Union No. 55 (hereafter
Sheet Metal Workers or Respondent) violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the assignment of work described below to employees
represented by Sheet Metal Workers rather than to
employees represented by Carpenters. A hearing was
held on January 14 and 15; February 6, 7, and 8;
March 11, 12, 14, and 15; and April 4 and 5, 1974,
before Hearing Officer Harold R. Weinrich. All par-
ties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-exam-
ine witnesses , and to adduce evidence bearing on the
issues . Thereafter, Respondent, the Employer, and
the Carpenters filed briefs in support of their posi-
tions.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a New York corporation with its
principal office and place of business in Huntington
Station, New York, where it is engaged as an acousti-
cal systems contractor in the construction industry. It
annually purchases products valued in excess of
$50,000 directly from business concerns located out-
side the State of New York. The parties have stipulat-
ed, and we find, that the Employer is engaged in
commerce within the meaning of the Act and that it
will effectuate the purposes of the Act to assert juris-
diction herein.
II THE LABOR ORGANIZATIONS INVOLVED
All parties stipulated, and we find, that Sheet Metal
Workers Local Union No. 55 and Suffolk County
III THE DISPUTE
A. Background and Facts of Dispute
D. Fortunato, Inc., a general contractor engaged in
performing work at the New York State Office Build-
ing project in Hauppauge, Long Island, New York,
subcontracted the furnishing and installation of all
the acoustical ceiling work on the project to the Em-
ployer. Consistent with its area practice, Employer
assigned the installation of said equipment to Carpen-
ters on March 14, 1972. The work involves the instal-
lation of the coffered metal ceiling system consisting
of the Krueger wall moldings, Soundlock metal cof-
fers, hangers, and fasteners. The assignment of the air
tube was made to the Sheet Metal Workers.
At all times relevant to this proceeding, the
Employer's relationship with the Carpenters has been
governed by a collective-bargaining agreement be-
tween the Building Trades Employers Association of
Long Island, Inc., Acoustical Contractors (herein
called BTEA) and the parties. The Sheet Metal Work-
ers objected to the work assignment to Carpenters,
and on January 26, 1973, it filed, through its interna-
tional association, a request with the National Joint
Board for the Settlement of Jurisdictional Disputes in
the Building and Construction Industry (herein called
the Old Joint Board), complaining that the Carpenters
had been assigned the disputed work. Thereafter, the
Carpenters indicated that it would not participate in
the voluntary settlement procedure, and the Employ-
er maintained that it was not bound by the procedure
or decisions of the Old Joint Board as its contract with
the Sheet Metal Workers had expired in August 1972.
On February 15, 1973, the Old Joint Board awarded
the work in dispute to the Sheet Metal Workers, al-
though neither the Carpenters nor Employer partici-
pated in the proceedings.
On April 25, 1973, the Employer entered into a
temporary agreement with the Sheet Metal Workers,
pursuant to which Employer, inter alia, agreed to stop
the installation of a part of the ceiling work, namely,
the Soundlock coffers, at the New York State office
building, until a decision was rendered by the newly
formed Impartial Jurisdictional Dispute Board for the
Construction Industry (herein called the New Board).
On June 14, 1973, Sheet Metal Workers and the
BTEA entered into a new collective-bargaining agree-
ment. Paragraph (7) of the addendum to the agree-
ment embodies the temporary agreement of April 25,
213 NLRB No. 76
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973.
On June 19 , 1973, the New Board directed the Em-
ployer to proceed with its original work assignment to
the Carpenters . On June 21 , 1973, the Employer ad-
vised the Sheet Metal Workers of the decision of the
New Board that the Carpenters would perform all the
work in dispute . However , on June 25 , 1973, the Em-
ployer was advised by the New Board to disregard its
letter of June 19, 1973, and comply with the Old Joint
Board decision of February 15, 1973.
On June 27, 1973, the Employer protested the direc-
tive of the New Board , maintaining that it was not
bound by the decision of the Old Joint Board, and
requested a reexamination of the facts and a decision
by the New Board . The Employer thereafter contin-
ued performing the work in dispute pursuant to its
original assignment to the Carpenters.
On July 6, 1973, the Sheet Metal Workers com-
menced picketing at the said state office building with
signs claiming that the Employer was not in compli-
ance with the decision of the New Board , and for the
purpose of forcing or requiring the Employer to assign
the Soundlock system to Respondent rather than to
the Carpenters . This picketing was terminated by Re-
spondent on August 21, 1973.
On July 23, 1973, the New Board advised all parties
that it had deferred any further compliance action
involving matters handled by the Old Joint Board
until the Joint Administrative Committee determined
what action would be taken with respect to Old Joint
Board decisions and also include any action against
the Sheet Metal Workers picketing.
On November 12, 1973, the New Board advised the
parties involved that it would take no action with
respect to the Old Joint Board decisions, and would
only take jurisdiction over disputes arising after June
1, 1973. Sheet Metal Workers claimed that it did file
a jurisdictional claim with its international concern-
ing the work in dispute on June 25, 1973. However,
there is no evidence of record that this claim was ever
filed with or acted upon by the New Board.
In January or February 1974, the Respondent oral-
ly informed the Employer that Respondent would
pursue no further claim to the Soundlock work at the
state office building . The Employer responded there
was possibly 3 or 4 weeks of work remaining because
of erosion of some of the Soundlock panels , but Re-
spondent reiterated that it made no further claim to
this punch list work.
B. The Work in Dispute
At the commencement of the hearing , the parties
stipulated that the disputes would concern the assign-
ment of the following tasks:
The handling and installing of the coffered metal
ceiling system , which consists of the Krueger grid
system , the Krueger wall molding , sound lock
metal coffers , and hangers and fasteners , and air
tubes at the New York State Office Building pro-
ject, Hauppauge , New York.
C. The Contentions of the Parties
The Respondent contends that jurisdiction should
not be asserted in this case in that there is no reason-
able cause to believe that a violation of Section
8(b)(4)(D) occurred because its picketing was infor-
mational in nature and not designated to effectuate a
work stoppage , and that , moreover , it has disclaimed
interest in the work in dispute . The Respondent final-
ly contends that if an affirmative award should be
made that it be in favor of Sheet Metal Workers on
the basis of area and industry practice and the train-
ing and skills of its members.
The Carpenters contends that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
occurred , that the Employer, Phillips, was not bound
to submit the dispute to the Old Joint Board , and that
an affirmative award should be made in its favor on
the basis of the Employer's assignment , the collective-
bargaining contract between Phillips and Carpenters,
company and industry practice , its members ' superior
skills involving the work in issue, and the economy
and efficiency effected by utilization of carpenters.
The Employer also contends that a violation oc-
curred and that it is not bound to the procedures of
the Old Joint Board . It further contends that the Car-
penters are not bound to the procedures of the Old
Joint Board , that its assignment was properly made,
and that the Board should award the work in dispute
to members of the Carpenters in conformity with its
assignment , and the fact that carpenters are more
readily available in the area than sheet metal workers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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.
We are not so satisfied in this case . An effective
renunciation of the work theretofore in dispute dis-
solves the jurisdictional dispute . As we held in General
Building Laborers ' Local Union No. 66 of the Laborers'
International Union of North America (Georgia-Pacific
Corporation), 209 NLRB 611 (1974), this does not
mean work in the abstract sense , but it means the
LOCAL UN. NO. 55, SHEET METAL WKRS. 481
work at the situs where the dispute arose. It is that
work which the Board would award, and not any
other. But the Respondent has renounced its claim
and we have no evidence of behavior inconsistent
with that disclaimer. And, as we pointed out in Geor-
gia-Pacific, Respondent's disclaimer is not impugned
by its refusal to disclaim similar work at future job-
sites, without evidence that Respondent intends to
secure the work by means proscribed by the Act.
Contrary to our dissenting colleagues, there is no
evidence from which it can reasonably be inferred
that the Respondent intends to secure the disputed
work by unlawful means at future jobsites. Indeed,
the Respondent has made it clear that it intends to
submit all jurisdictional disputes to the Impartial Dis-
putes Board, which the parties have voluntarily
agreed to employ for the resolution of such disputes.
This is the method preferred by Congress in Section
10(k) of the Act and if it is, as it should be for future
disputes, a workable formula certainly the Board
must accept that course of conduct. Another case
would be presented if it appeared that Respondent
was engaging in the practice of a hollow disclaimer for
the purpose of avoiding an authoritative decision on
the merits.
Under these circumstances, we find that the assign-
ment of work described herein is not in dispute within
the meaning of the Act, and we shall quash the notice
of hearing herein.
ORDER
It is hereby ordered that the notice of hearing issued
in this case be , and it hereby is, quashed.
CHAIRMAN MILLER and MEMBER KENNEDY , dissenting:
We disagree with our colleagues that Respondent
Sheet Metal Workers has effectively renounced its
claim to the work herein . The Board has traditionally
taken a narrow view , with the approval of the Su-
preme Court , of whether a disclaimer is indeed effec-
tive to oust the Board of its 10(k) jurisdiction,'
particularly where an employer is faced with real con-
flicting claims for the work 2 In our view, the Respon-
dent has not effectively disclaimed the work in
dispute. We would proceed to determine the dispute
for the reasons set forth in our dissent in General
Building Laborers' Local No. 66 of the Laborers' Inter-
national Union of North America (Georgia-Pacific Cor-
poration), 209 NLRB 611 (1974).
The Respondent here has renounced nothing more
than its claim to the work at this particular jobsite. It
clearly stated, in response to the Employer's request
for a written disclaimer, that it would not renounce its
claim to work at future jobsites. In fact, Respondent
made clear that the only reason for its hollow dis-
claimer, coming so very late, was that the work was
already done. With only the minor punch list work
remaining, which simply would not be worth the trou-
ble of litigating further, Respondent gives nothing but
instead escapes all consequences of its unlawful be-
havior by disclaiming the work at this particular job-
site. Yet, Respondent affirms that it intends to
attempt to secure this very same work at future job-
sites, inferentially by the same illegal behavior which
it exercised here. So once again, and perhaps again
and again, the Employer must face picketing, strike
threats, job delay, and the expense in time and money
of litigating the same issue now ripe for decision by us
here.
In these circumstances, we believe that Respondent
has not effectively renounced its claim to the work in
dispute, but has reaffirmed it. Respondent's desire to
avoid definitive resolution of the question now simply
because it failed to persuade the Employer to change
the assignment before the work was in reality com-
pleted is insufficient grounds to relieve the Board of
its statutory obligations under Section 10(k) to de-
termine this jurisdictional dispute.
(Safeway Stores, Incorporated), 134 NLRB 1320 (1961) N L R B. v Plasterers'
Local Union No 79, Operative Plasterers ' & Cement Masons' International
Assn , AFL-CIO (Texas State Tile & Terrazzo Co), 404 U.S 116, 134 ( 1971).
2 E.g, compare Sheet Metal Workers Local Union No 54 (Goodyear Tire
& Rubber Company and 0 T D Corporation), 203 NLRB 74 (1973), with
Brotherhood of Teamsters and Auto Truck Drivers , Local 70, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Ind (Hills Transportation Co.), 136 NLRB 1086 (1962 ), Wood, Wire & Metal
i Highway Truckdrivers & Helpers, Local 107, International Brotherhood of Lathers International Union, Local No 328, AFL-CIO (Acoustics & Speciali.
Teamsters, Chauffeurs, Warehousemen and Helpers of America , Independent ties, Inc), 139 NLRB 598 (1962)