Sheet Metal Workers Local 38 (Corbesco)

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1069 (N.L.R.B. 1989)

SHEET METAL WORKERS LOCAL 38 (CORBESCO) 1069
Sheet Metal Workers Union, Local 38 and
Corbesco, Inc. and Local Union No. 417, Inter-
national Association of Bridge , Structural and
Ornamental Iron Workers Union, AFL-CIO
and Solar Turbines, Inc. Case 2-CD-771
July 31, 1989
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
The charge in this Section 10 (k) proceeding was
filed April 4, 1989,1 by the Employer, Corbesco,
Inc., alleging that the Respondent , Sheet Metal
Workers Union , Local 38 (Sheet Metal Workers
Local 38), violated Section 8(b)(4)(D ) of the Na-
tional Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Em-
ployer to assign certain work to employees it rep-
resents rather than to employees represented by
Local Union No. 417, International Association of
Bridge , Structural and Ornamental Iron Workers
Union , AFL-CIO (Iron Workers Local 417). The
hearing was held May 17 before Hearing Officer
Mary Ostrowski.
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 following find-
ings.
1. JURISDICTION
The Employer , a Louisiana corporation with its
principal office and place of business located in
New Orleans, Louisiana , is engaged in the business
of engineering , finishing , fabricating , and installing
industrial sheeting and accessories . Annually, it
purchases and receives goods and materials valued
at more than $50,000 which are shipped directly to
it from points outside the State of Louisiana. The
parties stipulate , and we find, that the Employer is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that Iron Workers
Local 417 and Sheet Metal Workers Local 38 are
labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In February, the Employer entered into a sub-
contract with United Steel Structures (United) to
i All dates are in 1989 unless otherwise indicated.
install sheeting , finishing and trim , liner panel, insu-
lation , walk doors , exhaust fans , roof curbs,
louvers, and air intakes at a cogeneration building2
for Lederle Industries (Lederle) at its facility in
Pearl River, New York. Solar Turbines (Solar), the
general contractor or project manager , contracted
with United to supply the steel and siding for the
building.
The Employer has a collective-bargaining agree-
ment with Iron Workers Local 417 covering work
of the kind to be performed by the Employer at
the Lederle facility. Pursuant to this agreement, on
March 1 , the Employer assigned this work to em-
ployees represented by Iron Workers Local 417.
That same day, Edward Peskie, business represent-
ative for Sheet Metal Workers Local 38, phoned
Clifford Cutrell, president of the Employer. Peskie
told Cutrell he was claiming the Employer's work
for employees represented by Sheet Metal Workers
Local 38.3 When told by Cutrell that the work had
been assigned to employees represented by Iron
Workers Local 417, Peskie said that he "could not
stand idly by and watch another trade perform our
work" and that "I'll just take whatever steps I
have to necessary to get this work for my mem-
bers."4
The following day, Peskie spoke with representa-
tives of Solar, United, and Lederle. Peskie testified
that in each of the conversations, he said that the
work in question was jurisdictional work belonging
to his Union .5 James McGuire , business agent of
Iron Workers Local 417, testified that he had a
conversation with Peskie regarding the work in
question, and then spoke with Bill Watts , a repre-
sentative of Solar, who told McGuire that he was
concerned that the job would be delayed, or that
there would be a work stoppage. McGuire testified
that Peskie did not threaten him and that he did
not know whether Peskie had threatened Watts.
On or about March 8, Alan Miller, a Lederle rep-
2 A cogeneration building is a preengineered building All the compo-
nents are predesigned , premanufactured , and shipped to the same site
where they are then erected.
8 Employees represented by Sheet Metal Workers Local 38 have per-
formed work for contractors at the Lederle site at various times for the
past 15 years.
4 Peskie also had a conversation with Bill Watts , a representative of
Solar, prior to speaking with Cutrell. Peskie testified that, in this conver-
sation, he told Watts that he "couldn 't stand idly by and watch a contrac-
tor eat my lunch or contractor do work that I felt belongs to me."
5 Cutrell testified that , on or around March 6 , he received a call from
Shafrin , a representative of United , who said, "Hey, what are you going
to do about the sheet metal problem up in New York? You got to get
these guys off my back ." In addition , Cutrell testified that he received a
call from Bill Watts who told him he was "getting a lot of heat from Mr
Peskie" and asked, "what are you going to do to get this man off my
back?" Cutrell then added that neither of these people told him they re-
ceived a threat from Peskie.
295 NLRB No. 121
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resentative , called Peskie and told him he was
trying to resolve the situation.
The Employer , using employees represented by
Iron Workers Local 417, began the work in ques-
tion on March 14 . On March 15 , the Employer re-
ceived a letter from United instructing the Employ-
er to delete the installation of the building louvers
and ventilation fans from its scope of work. At-
tached to this letter was a letter from Solar to
United requesting that United delete this work
from its scope of work at the site . Shortly thereaf-
ter, the work at issue was awarded to Elmsford
Sheet Metal, a contractor whose employees are
represented by Sheet Metal Workers Local 38. The
work was then performed and completed by em-
ployees represented by Sheet Metal Workers Local
38.
B. Work in Dispute
The disputed work involves the installation of
building louvers , roof curbs, roof fans, and ventila-
tion fans on a cogeneration building at the Lederle
Laboratories, Division of American Cyanamid, site
in Pearl River, New York , being constructed by,
inter alia, Corbesco.
C. Contentions of the Parties
Sheet Metal Workers Local 38 contends that
there is no reasonable cause to believe that any of
the conversations Peskie had with representatives
of the Employer , United , Solar, or Lederle in-
volved a violation of Section 8(b)(4)(D ) of the Act.
For this reason , Sheet Metal Workers Local 38
contends that the present dispute is not properly
before the Board.
The Employer contends that there is reasonable
cause to find that Sheet Metal Workers Local 38
made direct threats to the Employer and coerced
Lederle, Solar, and United with the object of forc-
ing a reassignment of the work to employees repre-
sented by Sheet Metal Workers Local 38 . The Em-
ployer further contends that the factors of employ-
er preference , efficiency and economy of oper-
ations, and its collective-bargaining agreement with
Iron Workers Local 417 favor a jurisdictional
award to employees represented by Iron Workers
Local 417 . Moreover, the Employer contends that
the Board should award prospective relief to Iron
Workers Local 417 , encompassing the entire juris-
diction of Sheet Metal Workers Local 38, because
of the likelihood that Sheet Metal Workers Local
38 will continue to claim the disputed work on
future projects arising in its jurisdiction and will
resort to similar conduct to obtain such work.
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 Section 8(b)(4)(D) of the Act has
been violated . The Employer contends that Sheet
Metal Workers Local 38 violated Section
8(b)(4)(D) by its statement to the Employer that
"I'll just take whatever steps I have to necessary to
get this work for my members" and by its subse-
quent coercive conversations with representatives
of Lederle , Solar, and United . Sheet Metal Work-
ers Local 38, however, argues that its statement to
the Employer did not constitute a threat and that
there is no evidence that Sheet Metal Workers
Local 38 threatened or coerced anyone in connec-
tion with obtaining the work in question.
Peskie testified that while speaking to Cutrell
about obtaining the work for employees represent-
ed by Sheet Metal Workers Local 38 he said he
"could not stand idly by and watch another trade
perform our work ." Peskie also testified that he
subsequently made several calls and spoke to repre-
sentatives of Lederle , Solar , and United . He stated
that in these conversations he never threatened
anyone or told anyone he would picket the job.
Cutrell testified that, in his conversation with
Peskie, Peskie said to him "I 'll just take whatever
steps I have to necessary to get this work for my
members ." When asked at the hearing if Peskie had
threatened him, Cutrell replied that he had not.
Cutrell also testified that he did not hear any re-
ports of Peskie making threats to Lederle , Solar, or
United. Although a Solar representative told the
business agent of Iron Workers Local 417 that he
was concerned about a delay or work stoppage, he
did not indicate that he had been threatened by
Peskie.
We find that the testimonies of Peskie , Cutrell,
and McGuire do not establish reasonable cause to
believe that Sheet Metal Workers Local 38 violat-
ed Section 8(b)(4)(D ). The statements , "I could not
stand idly by and watch another trade perform our
work" and "I'll just take whatever steps I have to
necessary to get this work for my members," are
too vague and insubstantial to establish reasonable
cause . 6 While these statements do indicate that
6 See generally Teamsters Local 82 (Champion Exposition), 292 NLRB
794 (1989) (union official 's statement that there would be "a problem" if
another employer was used for a certain job is too vague and insubstan-
tial to establish reasonable cause ), Lithographers & Photoengravers Interna-
tional Union Local 23-P (News Publishing), 167 NLRB 958 (1967) (state-
ments "the work had to stop," "the Union would take appropriate ac-
tions," and "we are not going to stand still " do not establish reasonable
cause); Operating Engineers Local 106 (E C. Ernst), 137 NLRB 1746
(1962) (statement "try it and see" does not establish reasonable cause).
SHEET METAL WORKERS LOCAL 38 (CORBESCO) 1071
Peskie intended to take some action, they do not
indicate that Peskie was communicating a threat of
illegal conduct.
Nor are we persuaded that the totality of cir-
cumstances leading to the removal of the disputed
work from the Employer's subcontract establishes
the existence of reasonable cause to believe Section
8(b)(4)(D) was violated. The evidence presented
merely establishes that, subsequent to Peskie's con-
versations with Lederle , Solar , and United, the
work was given to Elmsford Sheet Metal. The to-
tality of circumstances suggests that Peskie actively
and aggressively pursued the work in question. De-
spite the concerns of some of the other contractors,
the evidence fails to establish reasonable cause to
believe that Peskie threatened anyone in connec-
tion with obtaining the disputed work for employ-
ees represented by Sheet Metal Workers Local 38.
We find that the Board is without authority to
determine this dispute. Accordingly, we shall quash
the notice of hearing.'
ORDER
The notice of hearing is quashed.
7 In view of our finding that there is no reasonable cause to believe
that Sec 8(b)(4XD) has been violated, we find it unnecessary to pass on
Sheet Metal Workers Local 38's alternative argument made at the hear-
ing that the notice of hearing should be quashed because of Sheet Metal
Workers Local 38's disclaimer of the disputed work.