Sheet Metal Workers Local 36 (Fisher Inc)

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 165 (N.L.R.B. 1988)

SHEET METAL WORKERS LOCAL 36 (FISCHER INC) 165
Sheet Metal Workers International Association,
AFL-CIO, Local Union No 36 and Frank
Fischer, Incorporated and Local Union No 2,
International Union of Operating Engineers,
AFL-CIO and Design Aire, Inc Case 14-CD-
790
September 30, 1988
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed April 13 1988 by Frank Fischer Incorporat
ed alleging that the Respondent, Sheet Metal
Workers International Association, AFL-CIO
Local Union No 36 (Sheet Metal Workers Local
36) violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed ac
tivity with an object of forcing the Employer to
assign certain work to employees it represents
rather than to employees represented by Local
Union No 2 International Union of Operating En
gineers, AFL-CIO (Operating Engineers Local 2)
The hearing was held April 20 1988 before Hear
ing Officer Mary J Tobey Thereafter the Em
ployer filed a brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board affirms the hearing officer s rulings
finding them free from prejudicial error
On the entire record the Board makes the fol
lowing findings
I JURISDICTION
The Employer Frank Fischer Incorporated a
Missouri corporation with its principal office and
place of business located at 3940 Taussig Road
Bridgeton Missouri is a residential heating and air
conditioning contractor During the past 12 month
representative period, the Employer purchased and
received goods valued in excess of $50 000 directly
from suppliers located outside the State of Missou
n The parties stipulate and we find that the Em
ployer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that Sheet
Metal Workers Local 36 and Operating Engineers
Local 2 are labor organizations within the meaning
of Section 2(5) of the Act
II THE DISPUTE
A Background and Facts of the Dispute
The Employer is a residential contractor en
gaged in the installation of heating and air condi and replacement agreement
tioning systems Sheet Metal Workers Local 36 has
represented the Employers employees since 1956
and was certified as their collective bargaining rep
resentative in 1965 The current collective bargain
mg agreement is effective from May 1 1986,
through April 30 1989 Design Aire Inc was in
corporated in 1962 to service the heating and air
conditioning systems installed by the Employer
Design Aire and Operating Engineers Local 2 exe
cuted a collective bargaining agreement shortly
after Design Aire s incorporation The most recent
agreement was effective from April 1 1985
through March 31 1988 At the time of the hear
ing Operating Engineers Local 2 was engaged in
an economic strike against Design Aire and the
parties were attempting to negotiate a new agree
ment The Employer and Design Aire share
common ownership , management and business fa
cilities
Before 1987 about 5 to 10 percent of the total
work performed by the Employer and Design Aire
consisted of the disputed work (add on or replace
ment work) The add on work was performed as a
courtesy to existing customers About 60 percent of
the add on work was performed by Design Aire
employees represented by Operating Engineers
Local 2 The remaining work was performed by
the Employers employees represented by Sheet
Metal Workers Local 36 During this period if the
add on work required a significant amount of duct
work or sheet metal work the job was assigned to
the Employers employees
Sometime prior to March 1987 the Employer
and Sheet Metal Workers Local 36 entered into a
side agreement providing for a lower paid employ
ee classification called residential specialist to per
form the add on/replacement work i The Employ
er thereafter actively solicited add on work In
March 1987 the Employer hired new employees as
residential specialists in the unit represented by
Sheet Metal Workers Local 36 It commenced as
signing about 95 percent of the add on work to the
new employees Presumably due to its active solici
tation the Employer increased its volume of add
on/replacement work fivefold
On September 16 1987 Operating Engineers
Local 2 filed a grievance against the Employer
concerning the recent layoff of three apprentices
The grievance alleged that the reassignment of the
add on work to the residential specialists violated
the agreement between Design Aire and Operating
Engineers Local 2 Thereafter, Sheet Metal Work
ers Local 36 sent a letter dated March 23, 1988, to
' This side agreement is referred to as the special residential service
291 NLRB No 22
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Employer The letter referred to the impending
arbitration of the Operating Engineers Local 2 s
grievance and contained a threat to strike if the
add on work were assigned to employees repre
sented by Operating Engineers Local 2 As of the
hearing date the work had not been reassigned and
the grievance had not been arbitrated
B Work in Dispute
The disputed work involves the replacement of
existing heating and air conditioning systems and
the addition of air conditioning units to existing
heating systems
C Contentions of the Parties
The Employer contends that Section 8(b)(4)(D)
has been violated that it properly assigned the dis
puted work to employees represented by Sheet
Metal Workers Local 36 that its past practice and
the area practices are mixed that all the collective
bargaining agreements involved arguably encom
pass the disputed work that its preference is to
award the disputed work to employees represented
by Sheet Metal Workers Local 36 that employees
represented by the Sheet Metal Workers Local 36
are more qualified to perform the work because of
their fabrication skills and that the use of this em
ployee group is more economical and efficient
Sheet Metal Workers Local 36 contends that the
work is properly assigned to employees it repre
sents because they have the necessary skills and
special training to perform add on work
Operating Engineers Local 2 contends that no
award of the work is appropriate because the
record evidence fails to establish a violation of Sec
tion 8(b)(4)(D) Alternatively Local 2 contends
that if there is an award the work should be award
ed to both employee groups consistent with the
Employers past practice
No party contends that there is an alternative
method to voluntarily resolve the dispute that
binds all parties
D Applicability of the Statute
Before the Board may proceed under Section
10(k) of the Act to determine a jurisdictional dis
pute it must find that there is reasonable cause to
believe that Section 8 (b)(4)(D) has been violated
and that there is no agreed on method for resolving
the dispute
It is undisputed that by its March 23 1988 letter
Sheet Metal Workers Local 36 informed the Fm
ployer that if this work is reassigned to the em
ployees represented by Local 2 it is the intention
of Local 36 to immediately strike for the purpose
of obtaining this work Based on the foregoing
we conclude that there is reasonable cause to be
heve that Sheet Metal Workers Local 36 has vio
lated Section 8(b)(4)(D) of the Act See Typographi
cal Union Local 6 (New York Times) 225 NLRB
1311 (1976) (expression of readiness to strike suf
ficient) Lithographers Local 24 P (Beacon Journal)
185 NLRB 464 (1970) (union in possession of work
threatened to resist reassignment by appropriate
means including a strike )
Furthermore there is no evidence of a mutually
agreed on method for voluntarily resolving this dis
pute Accordingly we conclude that this dispute is
properly before the Board for determination
E Merits of the Dispute
Section 10(k) requires the Board to make an of
firmative 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 bal
ancing the factors involved in a particular case
Machinists Lodge 1743 (Jones Construction) 135
NLRB 1402 (1962)
The following factors are relevant in making the
determination of this dispute
1 Certification and collective bargaining
agreements
On April 19 1965 the Board certified Sheet
Metal Workers Local 36 as the bargaining repre
sentative of all journeymen and apprentice sheet
metal workers employed at the Employer s
Bridgeton Missouri facility The parties did not in
troduce evidence of any Board certification of Op
erating Engineers Local 2 to represent the Design
Aire employees
All three of the record collective bargaining
agreements2 arguably encompass the disputed
work The record also contains evidence of a
memorandum of understanding dated June 4 1986
signed by Sheet Metal Workers Local 36 and Op
erating Engineers Local 2 officials The stated pur
pose of the memorandum is to clarify Sheet Metal
Workers Local Union #36 St Louis Missouri s
intent for the utilization of the residential service
and replacement agreement The memorandum
states that Sheet Metal Workers Local 36 will not
2 The three collective bargaining agreements include the agreement be
tween the Employer and Sheet Metal Workers Local 36 effective May 1
1986 through April 30 1989 the agreement between Design Aire Inc
and Operating Engineers Local 2 effective April 1 1985 through March
31 1988 and the side agreement called the special residential service and
replacement agreement between the Employer and Sheet Metal Workers
Local 36
SHEET METAL WORKERS LOCAL 36 (FISCHER INC)
infringe on any straight line contractors signatory
to an Operating Engineers Local 2 contract but
that combination contractors signatory to both
Sheet Metal Workers and Operating Engineers
contracts will be offered the agreement Although
we note the memorandums existence its language
is insufficient to be of any relevance in making a
determination of this dispute Under these circum
stances we find that the factors of certification and
collective bargaining agreements do not favor an
award of the disputed work to either group of em
ployees
2 Company preference and past practice
The Employer prefers to use the residential spe
cialists represented by Sheet Metal Workers Local
36 to perform the disputed work Before March
1987 the Employer used both groups of employees
However since March 1987 the Employers prat
tice has been to assign the disputed work 95 per
cent of the time to employees represented by Sheet
Metal Workers Local 36 We find that the factor of
company preference favors an award to the em
ployees represented by Sheet Metal Workers Local
36 However, we find that the factor of past prac
tice does not favor an award to either employee
group
3 Relative skills
The record establishes that the add on work re
quires the use of skills involving sheet metal
wiring and pipefitting The Employer purchased
trucks called cube trucks specially equipped to
allow an employee to perform all the necessary
work at the jobsite including sheet metal work
Operating Engineers Local 2 concedes that only
the employees represented by Sheet Metal Workers
Local 36 possess sufficient sheet metal skills to per
form all portions of the disputed work at the job
site and are therefore able to utilize fully the
cube trucks Sheet Metal Workers Local 36 has
an apprenticeship training program that involves
special instruction in the add on/replacement field
Although Operating Engineers Local 2 also has a
training program it does not cover duct work
unless taken as an elective The record further es
tablishes that when Operating Engineers Local 2
employees do perform add on work measurements
for the sheet metal work are taken and the duct
work is fabricated in the shop rather than at the
167
jobsite Thereafter another employee installs the
duct work Under these circumstances we find
that this factor of relative skills favors an award to
the employees represented by Sheet Metal Workers
Local 36
4 Economy and efficiency of operation
The record establishes that Sheet Metal Workers
Local 36 residential specialists perform all portions
of add on work at the jobsite and are able to fully
utilize the Employers cube trucks The record
also establishes that because employees represented
by Operating Engineers Local 2 lack certain neces
sary skills involving sheet metal the use of these
employees to perform the add on work requires ad
ditional time steps and manpower to complete the
same add on work Also Operating Engineers
Local 2 represented employees that are not able to
fully utilize the cube trucks the Employer pur
chased for use on jobs involving any disputed
work Accordingly we find tnat the factor of
economy and efficiency of operation favors award
ing the disputed work to employees represented by
Sheet Metal Workers Local 36
Conclusions
After considering all the relevant factors we
conclude that employees represented by Sheet
Metal Workers Local 36 are entitled to perform
the work in dispute We reach this conclusion rely
ing on the factors of relative skills economy and
efficiency of operation and employer preference
In making this determination we are awarding the
work to employees represented by Sheet Metal
Workers Local 36 not to that Union or its mem
bers The determination is limited to the controver
sy that gave -ise to this proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
Employees of Frank Fischer Incorporated rep
resented by Sheet Metal Workers International As
sociation AFL-CIO Local Union No 36 are enti
tled to perform the replacement of existing heating
and air conditioning systems and the addition of
air conditioning units to existing heating systems
(add on/replacement work) for Frank Fischer In
corporated Bridgeton Missouri