Sheet Metal Workers, Local 49

National Labor Relations Board - Board Decisions

Oct 18, 1973

206 N.L.R.B. 473 (N.L.R.B. 1973)

SHEET METAL WORKERS, LOCAL 49 ` 473
Sheet Metal Workers ' International Association, Local
Union No. 49 and Los Alamos Constructors , Inc. and
International Association of Bridge , Structural and
Ornamental Iron Workers , Local Union No. 495.'
Case 28-CD-147
October 18, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Upon charges filed by the Charging Party on Feb-
ruary 16, 1973, the General Counsel of the National
Labor Relations Board by the Regional Director for
Region 28 issued a complaint and notice of hearing on
March 29, 1973, against Respondent, Sheet Metal
Workers. The complaint alleges in substance that Re-
spondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(4)(ii)(D)
of the National Labor Relations Act, as amended. In
its duly filed answer, the Respondent admits certain
allegations of the complaint and denies all unfair la-
bor practice allegations.2
On May 30, 1973, Respondent and the General
Counsel entered into a stipulation in which, inter alia,
they requested that this proceeding be transferred to
the Board. In the stipulation, the parties agreed in
effect that the formal papers filed in this proceeding,
the stipulation, together with the attached exhibits
and the order postponing the hearing indefinitely,
would constitute the entire record in the case and
agreed that no oral testimony was necessary or de-
sired. They waived their right to a hearing before an
Administrative Law Judge, the making of findings of
fact and conclusions of law by an Administrative Law
Judge, and the issuance of an Administrative Law
Judge's Decision. The stipulation provided for the
-filing of briefs with the Board.
On June 5, 1973, the Board issued its Order Grant-
ing Motion and Transferring Proceeding to the
Board. Respondent and the General Counsel filed
briefs thereafter.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
' Local 495, herein called Iron Workers, did not participate in this proceed-
in.
On May 8, 1973, the Regional Director issued an amendment to the
complaint and on May 9 issued a telegraphic order indefinitely postponing
the hearing. On May 22, Respondent duly filed an answer to the amendment
to the complaint.
case, including the briefs of the General Counsel and
the Respondent, and makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Charging Party, Los, Alamos Constructors, Inc.
(herein called LACI), is, and has been at all times
material herein , continuously engaged as a building
and construction contractor with an office and place
of business located in Los Alamos, New Mexico.
LACI is engaged in the construction of modifications
to the CMR Laboratory Building in Los Alamos, New
Mexico. LACI during the past calendar year, which
period is representative of all times material herein,
purchased and had delivered to its place of business
in Los Alamos, New Mexico , goods and materials
valued in excess of $50 ,000 which were transported
and delivered to New Mexico directly from States of
the United States other than New Mexico . During this
same period of time, LACI, in the course and conduct
of its business operations, provided and'performed
services for the Atomic Energy Commission , an agen-
cy of the United States Government , valued in excess
of $688 ,000, which had a substantial impact on the
national defense of the United States. Accordingly,
we find that LACI is, and has been at all times materi-
al, an employer engaged in commerce within the
meaning of Section 2(6) and- (7) of the Act and that
it will effectuate the purposes of the Act to assert
jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and we find that Respon-
dent, Sheet Metal Workers' International Associa-
tion, Local Union No. 49, is a labor organization
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
During the latter portion of 1971, LACI met with
representatives of Respondent and Iron Workers for
the purpose of discussing, on the basis of preliminary
drawings, certain work to be performed by LACI on
the CMR Laboratory Building in Los Alamos, New
Mexico, including but not limited to the removal of
existing blowers and filter plenums and their replace-
ment with new high-efficiency filters in larger ple-
nums together with the installation of larger blowers.'
On or about February 24, 1972, William C. Francis
3 LACI is a party to separate collective -bargaining agreements with both
Respondent and Iron Workers. However, neither Respondent nor Iron
Workers has been certified by the Board as the collective-bargaining repre-
Continued
206 NLRB No. 51
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Hugh Hancock , the chief and alternate chief,
respectively , of LACI's technical area , met with Gary
C. Briggs and Bernie Jacquez , business manager and
steward, respectively, for Respondent , and Frank
Reck and Cliff Hughes , past and present business
agents , respectively , of Iron Workers, regarding pro-
posed assignments of work for employees who 'are
members of , or are represented by, the aforemen-
tioned respective crafts , including the assignment of
the work in dispute . Both Iron Workers and Respon-
dent made claims on behalf of LACI's employees rep-
resented by their respective crafts to perform the
aforementioned heavier-than- 10-gauge metal work.
On or about February 29, 1972, Louis Babovich,
Jr., LACI's personnel director , telephoned George
Dowler , president of Respondent 's international par-
ent organization , regarding the apparent dis-
agreement between Respondent and Iron Workers
with respect to the assignment of the work in dispute.
Dowler advised Babovich that he would assign Inter-
national Representative Eugene Edwards to look into
the matter on behalf of Respondent 's international
parent organization . On the same date , Edwards tele-
phoned Babovich and informed him, among other
things , that he had made arrangements to meet with
Jack Martin, international representative of the Iron
Workers international parent organization, regarding
the apparent disagreement between Respondent and
Iron Workers with respect to the aforementioned as-
signment . On or about March 7, 1972, Edwards tele-
phoned Babovich and informed him that he had met
with Martin to discuss the work assignment in dis-
pute, and that both Unions were going to continue to
claim the disputed work . Edwards stated further that,
in view of the two labor organizations ' agreement to
disagree regarding their respective jurisdiction to per-
form the disputed work, there would be no need for
further meetings between the two labor organizations
involved. On or about March 8 , 1972, Martin tele-
phoned Babovich and informed Babovich that both
Iron Workers and Respondent were claiming the
work in dispute and that neither labor organization
would relinquish its claim for such work. '
By letter dated March 23, 1972, LACI assigned the
fabrication and installation of plenums and trans-
itions heavier than 10 gauge on the CMR Laboratory
Building project in Los Alamos , New Mexico, the
work in dispute , to employees represented by Iron
Workers 4
sentative of LACI's employees engaged in the fabrication and installation of
plenums and transitions heavier than 10 gauge on the CMR Laboratory
Building in Los Alamos, New Mexico (herein the work in dispute), nor has
the Board issued any order directing LACI to bargain with Respondent or
Iron Workers as the representative of said employees.
° While admittedly all parties are, and at all times material herein have
been, bound by the rules and procedures of the National Joint Board for the
Following Respondent's receipt of LACI's letter of
March 23, Respondent, pursuant to the grievance
procedure set forth in article X of its collective-bar-
gaining agreement with LACI, lodged a verbal griev-
ance against LACI regarding LACI' s assignment of
the work in question to employees represented by
Iron Workers rather than to employees represented
by Respondent.' As the basis for its grievance, which
had also been Respondent's basis for claiming the
work assignment , Respondent relied on article I, sec-
tion 1, and article III, section 1, of its contract with
LACI 6 Thereafter, representatives of LACI and Re-
Settlement of Jurisdictional Disputes , Respondent, Iron Workers, and LACI
have each failed to submit the dispute arising from the work assignment in
the present case to the said National Joint Board for resolution or determina-
tion in accordance with the agreed-upon method for the adjustment of said
work dispute.
Art. X of the Sheet Metal Workers contract provides:
Section 1 . Grievances of the Employer or the Union, arising out of
interpretation or enforcement of this agreement, shall be settled between
the Employer directly involved and the duly authorized representative
of the Union, if possible . An Employer may have the local association
present to act as his/her representative.
Section 2. Grievances not settled as provided in Section 1 of this
Article may be appealed by either party to the local joint adjustment
board in the area in which the work is performed and such board shall
. render a final and binding determination except as provided in
Sections 3 and 5 of this Article. The board shall consist of equal repre-
sentatives of the Union and of the local Employer's association, and
both sides shall cast an equal number of votes at each meeting... .
Section 3. Grievances not disposed of under the procedure prescribed
in Section 2 of this Article, because of a deadline or failure of such board
to act, may be appealed jointly or by either party to a panel consisting
of (1) representatives appointed by the general president of the Sheet
Metal Workers ' International Association and (2) representatives ap-
pointed by the chairman of the Labor Relations committee of the Sheet
Metal and Air Conditioning Contractors' National Association, Inc.
... except in a case of deadlocks, the decision of the panel shall be final
and binding.
Section 4 . Grievances not settled as provided in Section 3 of this
Article may be appealed jointly or by either party to the National Joint
Adjustment Board, as established by the Sheet Metal Workers' Interna-
tional Association and the Sheet Metal and Air Conditioning Contrac-
tors' National Association , Inc.... .
Section 5. A localjoint adjustment board, panel and the National Joint
Adjustment Board are empowered to render such decisions and grant such
relief to either party as they deem necessary and proper, including awards
of damages or other compensation and, if it is believed warranted , to direct
that the involved agreement and any other agreement of agreements
between the Employer and any other local union affiliated with the
Sheet Metal Workers' International Association be cancelled . . . . [Em-
phasis supplied.]
Section 7 .... There shall be no cessation of work by strike or lock-
outs during the pendency of the procedures provided for in this Article.
Except in the case of deadlock , the decision of the National Joint Ad-
justment Board shall be final and binding.
6 Art. I, sec. 1, provides:
This Agreement covers the rates of pay , rules and working conditions
of all employees of the employer engaged in but not limited to the (a)
manufacture , fabrication, assembling, handling, erection, installation,
dismantling , conditioning , adjustment , alteration , repairing and servic-
ing of all ferrous or nonferrous metal work of U.S. No. 10 gauge or its
equivalent or lighter gauge and all other materials used in lieu thereof
and of all air-veyor systems and air handling systems regardless of material
used including the setting of all equipment and all reinforcements in
connection therewith; (b) all lagging over insulation and all duct lining;
(c) testing and balancing of all air-handling equipment and duct work;
SHEET METAL WORKERS, LOCAL 49 475
spondent met on several occasions to discuss the
aforesaid grievance but were unable to resolve their
differences.
By letter dated January 23, 1973, from
Respondent's business manager, Gary E. Briggs, to
Jack Pope, chairman of the local joint adjustment
board provided for in Respondent's contract, Re-
spondent notified the local joint adjustment board
that it was proceeding to the next step in the grievance
procedure? On or'about January 29, 1973, Pope tele-
phoned LACI's Babovich and advised him that Re-
spondent had filed a grievance under the Sheet Metal
Workers contract and that a hearing on the grievance
had been scheduled for February 1, 1973, before the
local joint adjustment board. By letter dated January
31, 1973, LACI advised the local joint adjustment
board that it would not attend the hearing on the
grievance filed by Respondent against LACI.8
On or about February 5, 1973, LACI was advised
that the local joint adjustment board, consisting of
three representatives of Respondent and three repre-
sentatives of the local Sheet Metal Contractors' Asso-
ciation, had met to hear the grievance filed by
Respondent against LACI, and that LACI had "been
found in violation of [its] contract with Sheet Metal
Workers Local No. 49 in assignment of sheet metal
work to iron workers."9
(d) the preparation of all shop and field sketches used in fabrication and
erection , including those taken from original architectural and engineer-
ing drawings or sketches , and (e) all other work included in the junsdic-
tional claims of Sheet Metal Workers ' International Association.
[Emphasis supplied.]
Art. III, sec. 1, provides:
The Employer agrees that none but journeyman and apprentice sheet
metal workers shall be employed on any work described in Article I.
7 Briggs' letter stated in pertinent part that:
It is the position of Local 49 that the work [assignment in the present
case] is clearly subject to the Collective Bargaining Agreement, and is
work described in Article I of same. The Union contends that the Em-
ployer [LACI] is in violation of Articles I and III of the Agreement and
Article 2 , Section 1 of the Agreement.
The work order, a copy of which is attached hereto and identified as
exhibit 1, indicates that 3,464 man hours of work is to be performed on
the job in question . The Union contends and does request that the
Employer [LACI ] be required to pay to the qualified pension fund for
the benefit of members of Local Union No. 49 3,464 man hours at the
rate of $8.88 per hour, and agree henceforth that all work of the type
described herein shall be performed by and does belong to the Sheet
Metal Workers.
In its reply , LACI related the preceding events and stated:
Los Alamos Constructors, Inc has a labor agreement with Sheet
Metal Union Local No. 49, plus many other crafts including Iron Work-
ers, Electricians , Carpenters, etc. Therefore, when jurisdictional claims
are in conflict with two or more of our signatory unions, they cannot
logically be settled by a board composed of only one trade.
8
9 The minutes of the local joint adjustment board meeting were attached
to the letter and read:
Briggs stated that the work described is clearly subject to the Collective
Bargaining Agreement, and the employer is in violation of Articles 1 and
3 of the Agreement and Article 2, Section 1 of the Agreement.
Motion was by Bob Farmer to find Los Alamos Constructors , Inc. in
violation of contract as outlined in charges.
By letter dated February 8, 1973, from
Respondent's attorney, LACI was advised as follows:
As you are aware this firm represents Sheet Met-
al Workers, Local Union No. 49. It has been
called to our attention that two decisions have
been issued by the local Joint Board in accor-
dance with the requirements of the Collective
Bargaining Agreement, and that Lacky [sic] has
indicated in one instance a refusal to comply,
and in the other instance has failed and refused,
and continues to refuse, to comply.
Gary Briggs, Business Manager of the Local
Union, has requested that I bring a Section 301
proceeding in United States District Court for
breach of contract unless immediate steps are
taken by Los Alamos Constructors, -Inc. to com-
ply with the decision.
Please advise me at your earliest opportunity of
your position regarding these matters,
By letter dated February 22, 1973, from LACI' s house
counsel to Respondent's attorney , Respondent was
informed, among other things, that LACI had filed an
unfair labor practice charge against it as a result of
Respondent's continuing to press its claim to the work
assignment in the present case granted to members of
Iron Workers.
By letter dated February 27, 1973, from Briggs to
David S. Turner, general secretary-treasurer of
Respondent 's international parent organization, Re-
spondent, in accordance with the contract, gave noti-
fication of appeal ,from the action of the local joint
adjustment board, which resulted in a tie vote, and
requested a panel hearing on its grievance against
LACI regarding the latter's work assignment in the
present case.10 By letter dated March 29, 1973, LACI
Seconded by Dan Barksdale
Gary Briggs asked that if found guilty that Los Alamos Constructors,
Inc. should pay all legal fees and costs should this decision be taken to
the courts
Voting results Motion Carried 100%.
Motion was made by Bob Farmer that pension fund be awarded $8.88
an hour for each hour worked by any other craft other than sheet metal
workers on plenums and other sheet metal work which is violation of the
Sheet Metal Workers Agreement.
Seconded by Dan Barksdale
Voting results : Tie Vote.
10 This letter in pertinent part reads as follows-
The local Joint Adjustment Board found LACI in violation of the cur-
rent agreement as charged . The portion of the hearing I am appealing
Continued
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was informed that a grievance had been filed against
it by Respondent at the panel level, and that a hearing
before a panel designated by Respondent's interna-
tional parent organization and Sheet Metal and Air
Conditioning Contractors' National Association
(herein SMACNA) was scheduled for April 17, 1973.
On April 19, 1973, a panel of representatives designat-
ed from Respondent's international parent organiza-
tion and SMACNA did meet and considered, among
other things, the merit of the grievance filed by Re-
spondent against LACI with respect to the work as-
signment in the present case, and what, if any, remedy
should be accorded Respondent. As of this date, the
panel has not announced its decision.
The sole issue in this case is whether, on the stipu-
lated facts recited above, Respondent's pursuit of a
monetary award in the contractual grievance pro-
ceedings and its announced intention to initiate a Sec-
tion 301 suit for enforcement of its
collective-bargaining agreement with the Employer
constituted coercion within the meaning of Section
8(b)(4)(ii)(D), and is thereby violative of that section
of the Act.
The General Counsel contends in essence that the
Respondent's pursuit of a payment of money from
LACI as a result of the latter's having made the work
assignment in the present case to employees repre-
sented by Iron Workers rather than to employees rep-
resented by Respondent constitutes a type of coercion
proscribed by Section 8(b)(4) of the Act. He argues
that by threatening to fine or penalize the Employer
on the basis of the Employer's alleged violation of
articles I and III of its collective-bargaining agree-
ment with Respondent, where Respondent has sought
and continues to seek the work assignment in dispute,
Respondent is engaging in economic coercion to fur-
ther an unlawful object.
Contrariwise, Respondent contends that it merely
seeks to do that which it can legally do and that pursu-
ing a contractual dispute through a contractual griev-
ance procedure should not be found to be coercive,
within-the meaning of Section 8(b)(4) of the Act. In
substance, Respondent is contending that it is legally
entitled to look to the arbitral process and the courts
for relief upon an alleged breach of its collective-
bargaining agreement with the Employer and to seek
actual damages flowing from that breach.
On the basis of the stipulated record, there is no
evidence of any conduct on Respondent's part which
to the panel is the motion made by Bob Farmer which ended in a tie
vote.
might be considered coercive, other than
Respondent's pursuit of the grievance and its an-
nounced intention to enforce the award of the local
joint adjustment board by initiating a Section 301 suit.
Thus, the sole issue before us is whether Respondent's
filing of this grievance under article X of its contract
with Respondent and its subsequently announced in-
tention to enforce the local joint adjustment board's
award by means of a Section 301 suit constitutes coer-
cion within the meaning of Section 8(b)(4)(ii)(D).
The statutory scheme underlying Section 8(b)(4) is
clearly designed to promote the amicable resolution
of jurisdictional disputes while at the same time pro-
scribing conduct on the part of the disputing unions
which interferes with an employer's normal produc-
tive operations. In furtherance of this policy, we have
long held that coercion within the meaning of Section
8(b)(4) encompasses all nonjudicial acts of self-help in
furtherance of a jurisdictional claim."
In this case, Respondent has totally refrained from
engaging in any nonjudicial acts of self-help. Respon-
dent made no threats of a work stoppage, did not
engage in any interference with the Employer's nor-
mal business operations, and did not seek the aid of
other unions in support of its jurisdictional claim. All
that Respondent did was to explicitly follow the pro-
cedures set forth in article X of its contract with Re-
spondent. Although the present situation might be
viewed as placing the Employer in a Hobson's choice,
we find that it is a creature of its own making, arising
solely from the collective-bargaining agreement it
signed with the Respondent. That agreement specifi-
cally provides that the Union's jurisdiction extends to
the "manufacture, fabrication, assembling, handling,
production, installation, dismantling, conditioning,
adjustment, authorization, repairing and servicing of
all ferrous or nonferrous metal work of U.S. No. 10
gauge or its equivalent or a lighter gauge and all other
materials used in lieu thereof and of all air-veyor sys-
tems and air handling systems regardless of material
used. . . . " The agreement further provides that dis-
putes arising from its interpretation are to be resolved
through the local joint adjustment board and that the
aggrieved party is entitled to seek monetary damages.
From the stipulated record it is clear that when the
Employer initially undertook the work in dispute it
was aware of the potential conflicting claims since the
work involved materials of greater-than-10-gauge
thickness to be used on air-veyor systems.12 When the
parties were unable to reach an amicable resolution as
to the proper assignment of the work, the Employer
11 Err Hokin Corporation, 154 NLRB 839.
Since LACI refuses to abide by the decision of the local Joint Adjust- 12 The correspondence set forth above between the Employer and the
ment Board , I intend to file a 301 Suit to enforce the decision of the disputing Unions and the Employer's attempt to reach an amicable settle-
Board . ment of the conflicting claims between the competing Unions go to support
our conclusion in this regard.
SHEET METAL WORKERS , LOCAL 49 477
proceeded to make its own assignment.13
In response to the Employer's decision to award the
disputed work to another craft , Respondent filed a
grievance in accord with the provision of article X of
its contract with the Employer , which action we find
it had a lawful right to undertake . 14 In conclusion,
13 In this regard, we must note that neither the Employer nor either of the
disputing Unions has availed itself of the readily available National Joint
Board for resolution of this dispute.
14 Although the Employer took the position that the local Joint board was
an inappropriate forum for the resolution of a jurisdictional dispute between
two competing unions, we do not agree that such assertion necessarily pre-
cludes Respondent from invoking the contractual forum's procedures In our
view, the position taken by the General Counsel would render it impossible
for the Respondent to seek any redress of the alleged breach of its contract
in a situation, such as this , where the alleged breach involves a question of
work jurisdiction . This the statute did not intend to do, as such an approach
would work against the policy of encouraging amicable resolutions ofJuris-
dictional disputes . As towhether the Respondent's view of the provisions of
art. I is correct, such question is not now before us and we expressly do not
pass upon the contract's proper interpretation.
what we have here is a situation where Respondent
and LACI disagree as to whether LACI's assignment
of the disputed work was proper under the parties'
agreement . Respondent then sought a determination
of its rights - in the precise manner set forth in the
agreement . At no time did Respondent resort to any
form of self-help. There has been no disruption of
work. In these circumstances , we are constrained to
conclude that Respondent's seeking of a judicial rem-
edy via the contractual forum was not coercive within
the meaning of Section 8(b)(4)(ii)(D) and that the
complaint should therefore be dismissed in its entire-
ty.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.