Sheet Metal Workers Local 20

National Labor Relations Board - Board DecisionsMar 4, 1981

254 N.L.R.B. 1078 (N.L.R.B. 1981)

DECISlONS NATlONAL L'ocal Inc. 10(k) 8(b)(4)(D) :sented Clomfort Con~fort. Pllrsuant Conlfort examine .:he 7'he The The bu!;iness pur- ch;ised NE:W S a r b 2(ti) tracting. purchased 1e Section 2(6) 11. Associafiod, 2(5) 19801 unre- Solmar, Solmar Solmar jobsite mid- could the ". 20." lO(1) 2!i4 1078 OF LABOR RELATIONS BOARD Sheet Metal Workers International Association, No. 20 and Sarbo, Case 4-CD-505 March 4, 198 1 DECISION AND DETERMINATION O F DISPUTE This is a proceeding under Section of the National Labor Relations Act, as amended, follow- ing a charge filed by Sarbo, Inc., herein also called Sarbo, alleging that Sheet Metal Workers Interna- tional Association, Local No. 20, herein called Local 20 or the Union, had violated Section of the Act by engaging in certain pro- scribed activity with an object of forcing or requir- ing the assignment of certain work to employees repr by Local 20 rather than to employees of Mechanical Corporation, herein called to notice, a hearing was held before Hearing Officer Leonard P. Bernstein on Septem- ber 4, 1980, at Toms River, New Jersey. Sarbo and appeared at the hearing and were affored full opportunity to be heard, to examine and cross- witnesses, and to present evidence bearing on issues. Local 20 did not appear at the hear- ing. There were no briefs filed in this case. Board has reviewed the rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Board has considered the entire record in t h i case and hereby makes the following findings: I. THE BUSINESS OF THE EMPLOYERS parties stipulated, and we find, that Sarbo, a New Jersey corporation with its principal place of in Middleton, New Jersey, is engaged in the construction business as a mechanical contrac- tor. During the past calendar year, Sarbo goods and services outside the State of Jersey valued in excess of $50,000. The par- ties also stipulated, and we find, that is en- gaged in commerce within the meaning of Section and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. The parties further stipulated, and we find, that Comfort, a New Jersey corporation with its princi- pal place of business in Long Branch, New Jersey, is engaged in sheet metal and light mechanical con- During the past calendar year, Comfort goods and services from outside the State of New Jersey valued in excess of $50,000. T parties also stipulated, and we find, that Com- fort is engaged in commerce within the meaning of and (7) of the Act and it will effectu- NLRB NO. 143 ate the purposes of the Act to assert jurisdiction herein. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Sheet Metal Workers International Local No. 20, is a labor organization within the meaning of Section of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute Sarbo had a prime contract with Ocean County, New Jersey, to install the heating, ventilating, and air-conditioning system for a county library being constructed in Toms River, New Jersey. In early Sarbo subcontracted the sheet metal work involved to Comfort, whose employees are presented. In February or March the Union's busi- ness manager, Robert DeBartolo, informed Robert Sarbo's president, that if Sarbo gave the sheet metal work to Comfort there would be trou- ble on the job. In April Debartolo met with and told him he would shut down the job if Com- fort came on the site. Again in June, before Com- fort began work on the site, DeBartolo spoke to and told him the job would be shut down if Comfort came on the site. Comfort appeared on the about July 14, and found pickets present. Unable to work that day, Comfort sent all its employees home. The picketing lasted until July 31. Sometime in July DeBartolo told representatives of Comfort and Sarbo that in order to end the picketing Com- . fort must be taken off the job and its replacement must have a contract with his Local. DeBartolo also told Comfort's president that Comfort do the job if it got rid of its men and signed an agreement with Local 20. On August 6 Regional Director filed a peti- tion for injunction in the United States District Court for the District of New Jersey, and on August 25 the court issued an order granting a temporary injunction. The Union, by letter dated August 29, attempted to disclaim the disputed work asserting that: . . my client, Sheet Metal Workers Local 20, disclaims any interest in having Comfort Mechanical discharge its own employees and replace them with members of Local 20, and further disclaims any interest in having Comfort Mechanical sign a collective bargaining agreement with Local However, the last paragraph of the letter further states that: "As I have indicated throughout the proceedings, Local 20 seeks All dates are in 1980 unless otherwise indicated 3ntractor." the exrployees; union contrac:or 8(b)(4)(D) 10(k) nust 8(b)(4)(D) jobsite down midJuly DeBartolo DeBartolo its to o: 8(b>(4)(D) pur1)orted considerati~n.~ 10(k) lqk) ex~erience fbr practice-is Cf. General Labarers' international North 1 1079 SHEET METAL WORKERS. LOCAL NO. 20 only to cause the termination of Comfort as a con- tractor on this job site and its replacement with a union c B. The Work in Dispute The work in dispute consists of the installation and fabrication of the sheet metal work to be done in connection with the construction of the Ocean County Library in Toms River, New Jersey. C. Contentions of the Parties At hearing, Sarbo and Comfort contended that the disputed work properly belongs to the em- ployees of Comfort on grounds that: (1) Comfort has done 10 to 12 previous jobs for Sarbo and each job has been performed satisfactorily using Com- fort (2) it is more efficient and eco- nomical to use the nonunion employees since, unlike employees, they can perform any job the Employer requires without fear of impinging on the work of another trade; and (3) Ocean County area practice supports the use of nonunion contractors for sheet metal work. Further, Sarbo and Comfort contend that Local 20's alleged August 29 disclaimer is ineffective on grounds that it attempts to cause the termination of a nonunion and replace it with a union contractor, clearly in violation of Section of the Act. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section of the Act, it be satisfied that: (1) there is a reason- able cause to believe that Section of the Act has been violated, and (2) the parties have not agreed upon a method for the voluntary adjust- ment of the dispute. As to (1) above, Local 20 threatened to shut the unless Comfort was replaced with a union contractor. Further, in picketing began at the site and told representa- tives of Comfort and Sarbo that in order to end the picketing Comfort must be taken off the job and replacec with a union contractor. Additionally, said Comfort could do the job if it got rid of men and signed an agreement with Local 20. In these circumstances, there is reasonable cause believe that Local 20 engaged in such conduct with an object of forcing or requiring Sarbo Comfort to reassign the work to employ- ees represented by the Union in violation of Sec- tion of the Act. Local 20, however, by its letter of August 29, has to disclaim the disputed work. But the last paragraph of that letter is wholly inconsis- tent with any such disclaimer; it clearly indicates that the Union has not abandoned its objective of seeking to replace Comfort on the Toms River job with a union contractor. Thus, we find that the Union's disclaimer is ineffective and we give it no weight or further As to (2) above, the parties have submitted no evidence that there is any agreed-upon method for the voluntary adjustment of the present dispute. Accordingly, we find that the dispute is properly before the Board for determination under Section of the Act. E. Merits of the Dispute Section of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors, including the following: 1. Certification and collective-bargaining agreements There is no evidence that Local 20 has been cer- tified as the exclusive bargaining representative of any Sarbo's employees, or that it has a collective- bargaining agreement with Sarbo. Comfort's em- . ployees performing the work are not represented by a union. Accordingly, we give no weight to this factor in our determination of the dispute. 2. Employer's past practice The evidence establishes that Sarbo has utilized Comfort as a subcontractor on 10 or 12 previous sheet metal jobs and that the work has been per- formed satisfactorily by Comfort's employees. There is no evidence that Sarbo or Comfort has ever utilized employees represented by Local 20 to perform the work in dispute. Accordingly, we con- clude that the factor of the Employer's past prac- tice favors an assignment of the work in dispute to Comfort's employees. 3. Industry and area practice The record is silent concerning industry practice. With respect to area practice, there is some testi- mony by Alex Dohme of Comfort that, based on his as a nonunion subcontractor in the area 9 years, the majority of the sheet metal work in the area is performed by nonunion sheet metal contractors. The implication of this testimo- ny is that the area mixed. The testimony therefore is insufficient to establish such a domi- nance in assignment to one or the other group of Building Local Union No. 66 of the Laborers' Union of America (Georgia-Pacific Corporation). 209 NLRB 61 (1974). 110th inslallation work. perfrom exp:nse woik. efficiency Si~rbo basetl econlmy Em- ployc:r's sl~all the ployed 10(k) Relat~ons foregoing 1. I?mployees who pel 8(b)(4)(D) 10 8(b)(4)(D) current1 because 1083 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees as to warrant a conclusion that this factor favors an award to either of them. 4. Skills, efficiency, and economy groups of employees receive training in the and fabrication of sheet metal work and both groups are capable of performing the work in dispute. With respect to efficiency, however, it ap- pears that Comfort's employees have the skills to perform, and are willing to perform, many other construction tasks which their employer needs done whereas the employees represented by Local 20 are limited to performing only sheet metal As a result Comfort is able to complete a project without having to wait for other employees to non-sheet metal work and without the of hiring additional employees to do such Accordingly, we conclude that the factor of and economy favors an award of the work in dispute to Comfort's employees. 5. Employer preference assigned the work in dispute to, and pre- fers that it be performed by, the unrepresented em- ployees of Comfort, and Comfort likewise wishes to have the work performed by those employees. This factor favors an award to Comfort's employ- ees. Conclusion Based upon the entire record in this proceeding and after full consideration of all the relevant fac- tors, we conclude that Comfort's employees who are currently unrepresented are entitled to perform the work in dispute. We reach this conclusion on the Employer's past practice, the relative and efficiency of operations, and the assignment and preference. Accordingly, we determine the dispute before us by award- ing work in dispute to those employees current- ly err by Comfort as sheet metal workers. DETERMINATION O F DISPUTE Pursuant to Section of the National Labor Act, as amended, and upon the basis of the findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: of Comfort Mechanical Corpora- tion are currently unrepresented are entitled to form the installation and fabrication of sheet metal to be done in connection with the construc- tion of the Ocean County Library in Toms River, New J ersey. 2. Sheet Metal Workers International Associ- ation, Local No. 20, is not entitled, by means pro- scribed by Section of the Act, to force or require the Employer to assign the disputed work to employees represented by it. 3. Within days from the date of this Decision and Determination of Dispute, Sheet Metal Work- ers International Association, Local No. 20, shall notify the Regional Director for Region 4, in writ- ing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section of the Act, to assign the work in dispute to employees represented by it rather than the employees of Comfort Mechanical Corporation who are y unrepresented. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate em- ployees concerning union activities. WE WILL NOT tell employees that employ- ees were discharged of their union ac- tivity. WE WILL NOT attempt to remove employees from the bargaining unit in order to interfere with our employees' union activities. WE WILL NOT discharge or otherwise dis- criminate against any employee because of the union activity of our employees. WE WILL NOT contract out bargaining unit work because of the union activities of our employees. WE WILL NOT refuse to recognize and bar- gain with General Teamsters, Warehousemen and Helpers Union Local 890, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, as the exclu- sive collective-bargaining representative of our employees in the following appropriate unit: Truckdrivers, forklift drivers, over-the-road drivers, yardmen, helpers, maintenance me- chanics employed by us at our Salinas, Cali- fornia, facility; excluding supervisors, office clerical employees, and guards as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole Rory Ross, Joseph Lippe, Gary Castro, and Paul Marquez, who ,will reopl:n pera at ion, righl s 1081 SHEET METAL WORKERS, LOCAL NO. 20 were discharged on August 12, 1977, as a result of the termination of our trucking oper- ation, for any loss of pay resulting from their discr minatory discharge, plus interest. Back- pay run from the date of discharge until such time as the aforesaid employees secure, or did secure, substantially equivalent employ- ment with other employers or, in the event we the trucking operation, until we offer to reinstate them. W E WILL, in the event we reopen the truck- ing offer immediate and full rein- statement to each of the aforesaid employees to his former position or, if such position no longer exists, to a substantially or any other or privileges. WE WILL offer Larry Lucas the same wages and conditions of employment he enjoyed prior to August 12, 1977, and make him whole for any loss of earnings he may have suffered, plus. WE WILL, upon request, recognize and bar- gain with said Union as the exclusive collec- tive-bargaining representative of our employ- ees in the bargaining unit set forth above, in- cluding bargaining about our decision to close the trucking operation and the effects upon our employees, and, if an understanding in a signed agreement. WE WILL treat the initial year of certifica- tion as beginning on the date that we do the things set forth in this notice.