Sheet Metal Workers Local 73 (Crown Corr)

National Labor Relations Board - Board Decisions

Jun 27, 1994

314 N.L.R.B. 151 (N.L.R.B. 1994)

151
314 NLRB No. 30
SHEET METAL WORKERS LOCAL 73 (CROWN CORR)
1 Sheet Metal Workers Local Union No. 73 and Bridge, Structural
and Reinforcing Iron Workers Local No. 1 were served with notices
of the hearing but did not attend the hearing. We note that Iron
Workers Local No. 1’s attorney asserted in a letter to the Region
that no labor dispute exists, and that the Iron Workers did not intend
to participate in the proceeding. The letter was admitted into evi-
dence, for the limited purpose of establishing that notice of hearing
had been received by the Iron Workers.
2 Pellar is the president of the association.
3 All dates hereafter are 1993 unless otherwise stated.
4 Pellar testified that Sullivan is also a first vice president of the
International.
Sheet Metal Workers International Association
Local Union No. 73 and Crown Corr, Inc.
Sheet Metal Workers International Association
Local Union No. 20 and Crown Corr, Inc.
Sheet Metal Workers International Association,
AFL–CIO and Crown Corr, Inc. and Bridge,
Structural and Reinforcing Iron Workers
Local No. 1, of the International Association of
Bridge, Structural and Ornamental Iron-
workers, AFL–CIO, Party-in-Interest. Cases
13–CD–486, 13–CD–487, and 13–CD–488
June 27, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
The charges in this Section 10(k) proceeding were
filed December 7, 8, and 9, 1993, by the Employer,
Crown Corr, Inc., alleging that the Respondents, Sheet
Metal Workers International Association Local No. 73,
Sheet Metal Workers International Association Local
No. 20, Sheet Metal Workers International Association,
AFL–CIO violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign cer-
tain work to employees it represents rather than to em-
ployees represented by the Bridge, Structural and Rein-
forcing Iron Workers Local No. 1. The hearing was
held January 7, 1994, before Hearing Officer Wanda
L. Moses.1 Thereafter, the Employer filed a brief in
support of its position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free of prejudicial error. On the entire record,
the Board makes the following findings.
I. JURISDICTION
The participating parties stipulated that the Company
is an Indiana corporation engaged in the installation of
preformed, sheet metal roofing and siding, with its
principal place of business currently located at 7100
West 21st Avenue, Gary, Indiana, that the Company
does work at various construction sites in Illinois, Indi-
ana, and other States, and that during the past 12
months it has purchased and received goods, material,
and supplies valued in excess of $50,000 at Illinois
construction sites, from points outside the State of Illi-
nois, and during the same period received gross reve-
nues in excess of $500,000. We find that the Employer
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act. The parties, present at the
hearing stipulated, and we find, that Sheet Metal
Workers International Association Local No. 73, Sheet
Metal Workers International Association Local No. 20,
Sheet Metal Workers International Association, AFL–
CIO, and Bridge, Structural and Reinforcing Iron
Workers Local No. 1, of the International Association
of Bridge, Structural and Ornamental Ironworkers,
AFL–CIO are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer’s president, Pellar, testified that the
Employer is a member of the National Association of
Siding and Decking Contractors and is bound to that
association’s collective-bargaining agreement with the
Sheet Metal Workers International Association, AFL–
CIO.2 This agreement covers all of the Employer’s
employees who are engaged in jobsite metal work.
Around the end of August 1993,3 the Employer re-
ceived a contract from Jacobs Constructors, Inc. to fab-
ricate, handle, and load all necessary metal roofing and
siding for a project at the CornProducts facility. In a
letter of assignment the Employer assigned the work of
‘‘siding’’ to its sheet metal workers. Pellar testified
that the assignment covered all of the work covered by
the Employer’s contract with Jacobs Constructors.
According to Pellar, the Employer received a phone
call in September and another call in early October
from Craig Satalic, business agent for Iron Workers
Local No. 1 claiming the work on the CornProducts
job. The Employer received a letter dated October 20
from the Iron Workers’ attorney stating that the Em-
ployer had breached its agreement with the Iron Work-
ers, and threatening legal action unless the work was
assigned to the Iron Workers. According to Pellar, on
November 22, Satalic told Pellar that he wanted at
least 50 percent of the work to be assigned to the Iron
Workers.
The Employer had three Sheet Metal Workers rep-
resented employees on the job, two were from Local
20 and the other was from Local 73. On December 7,
Satalic again stated that he had to have 50 percent of
the work. Later that same day Pellar talked with Mi-
chael Sullivan, business manager for Local 20, by
phone.4 Pellar stated to Sullivan that he was consider-
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing changing the work assignment. Shortly thereafter,
Pellar received a letter, by fax, from the Sheet Metal
Workers International Association, stating that it would
not accept reassignment of the work and would take
the necessary action to protect its members and their
work. Sullivan testified that, after his conversation
with Pellar, he instructed the members of Local 20 to
engage in a work stoppage which lasted 2 days.
B. Work in Dispute
The work in dispute is furnishing and installing in-
sulated and uninsulated metal panels, various flashing
trim pieces, panel support members, metal roof panels,
translucent fiberglass fixed and vented window units
with operating hardware and miscellaneous sealants
and fasteners at the CornProducts plant on Archer
Road in Summit-Argo, Illinois.
C. Contentions of the Parties
The Employer contends that reasonable cause exists
to believe that the Sheet Metal Workers violated Sec-
tion 8(b)(4)(D) of the Act. The Employer contends that
the work in dispute always has been assigned to the
Sheet Metal Workers, and that this is reflected in the
national agreement between the National Association
of Siding and Decking Contractors and the Sheet
Metal Workers International Association, AFL–CIO
and that it is bound to that agreement. The Employer
further contends that the industry practice in the geo-
graphic area is not inconsistent with the current assign-
ment and that the Sheet Metal Workers are specifically
trained to perform siding and decking work.
The Sheet Metal Workers International Association,
AFL–CIO and Local 20 position at the hearing was
that the matter was properly before the Board and that
the Board should award the work in dispute to the em-
ployees of the Employer who are represented by the
Sheet Metal Workers International Association.
D. Applicability of the Statue
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed-upon method for
the voluntary adjustment of the dispute.
The Employer’s president, Richard Pellar, testified
that the Employer received phone calls from the busi-
ness agent for Iron Workers Local 1 claiming the
work, and a letter from the Iron Workers’ attorney
threatening legal action unless the work was assigned
to the Iron Workers. Pellar also testified that he re-
ceived a letter from the Sheet Metal Workers Inter-
national Association stating that it would take the nec-
essary action to protect its members and their work.
Sullivan, business manager for Local 20, testified that,
after Pellar had indicated that the Employer might re-
assign the work, he instructed the members of Local
20 to engage in a work stoppage which lasted 2 days.
Based on the foregoing, we find reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred. The parties participating in the hearing stipu-
lated, and we find, in the absence of any claim or evi-
dence to the contrary, that there exists no agreed-upon
method for voluntary adjustment of the dispute within
the meaning of Section 10(k) of the Act. Accordingly,
we find that the dispute is properly before the Board
for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering several
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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the deter-
mination of the dispute.
1. Collective-bargaining agreements
The Employer is a member of the National Associa-
tion of Siding and Decking Contractors and is bound
to that association’s collective bargaining agreement
with the Sheet Metal Workers International Associa-
tion, AFL–CIO. Article 1 section 1, of that agreement
states:
This Agreement covers the rates of pay and
conditions of employment of all employees of the
EMPLOYER engaged in job site fabrication, han-
dling, erection, installation, dismantling condi-
tioning, adjustment, alteration, repairing and serv-
icing of all ferrous or nonferrous metal work and
all other materials used in lieu thereof of those
items set forth in Section 2 of this Article
throughout the United States and it’s territorial
possessions.
Pellar testified that the work described in the above
agreement is the work assigned to the sheet metal
workers at the CornProducts facility. There was no
evidence presented to establish a collective-bargaining
agreement between the Employer and Ironworkers
Local 1. In these circumstances, we find the factor of
collective-bargaining agreements favors an award of
the disputed work to employees represented by the
Sheet Metal Workers.
153SHEET METAL WORKERS LOCAL 73 (CROWN CORR)
5 Pellar testified that the training fund is a program established
by the Sheet Metal Contractors and Sheet Metal International that
develops programs to help in the training of sheet metal workers.
2. Employer preference and past practice
The Employer has assigned the disputed work to
employees represented by Sheet Metal Workers Locals
20 and 73. Pellar testified that he had assigned a large
number of projects to sheet metal workers, both in the
geographical area as well as nationally when the
projects fell within the jurisdiction of both the Sheet
Metal Workers and the Iron Workers. As for the fu-
ture, the Employer prefers that its assignment to em-
ployees represented by the Sheet Metal Workers be
continued. No evidence was presented contrary to
Pellar’s testimony. In the absence of such evidence, we
find that the factors of employer preference and past
practice favor the continued assignment of the disputed
work to the employees represented by the Sheet Metal
Workers.
3. Area and industry practice
Pellar testified regarding four major projects, per-
formed by his competitors using sheet metal workers,
in the geographical area during the last 3 years. There
was no testimony of identical or similar work being
done using iron workers. Thus, based on the evidence
presented we find that awarding the work to sheet
metal workers is consistent with industry practice in
the area.
4. Relative skills
Pellar testified that Sheet Metal Workers locals have
apprenticeship programs that include training in the
type of work that is in dispute. The Employer intro-
duced a manual entitled ‘‘Siding and Decking for the
Sheet Metal Industry’’ which was developed by ‘‘The
National Training Fund for the Sheet Metal and Air
Conditioning Industry.’’5 Pellar stated that the workers
the Employer now has know whether a structure is
able to receive a particular product, that they can lay
out the product, can make flashings, and can install
roofing properly. There was no evidence presented
contrary to Pellar’s testimony and no claim or evidence
presented that the iron workers have any skills relative
to the disputed work. In these circumstances we find
that the factor of relative skills favors the assignment
of the work in dispute to the Employer’s employees
represented by the Sheet Metal Workers.
5. Economy and efficiency of operations
Pellar testified that the sheet metal workers know
how to do the work safely. Further, the collective-bar-
gaining agreement with the Sheet Metal Workers al-
lows him to keep a crew of four employees that he can
assign to any job in the country. Besides those four
workers, one-half of the work force can come from the
home local, Local 20, regardless of where the job is
located within the country. The agreement with the
Sheet Metal Workers does not restrict the type of work
an employee can do based on the individual’s rate of
pay. Pellar testified that the Iron Workers contract, un-
like the contact with the Sheet Metal Workers, encom-
passes the totality of all structural iron work and does
not specialize in the area of siding and metal decking.
As there is no claim or evidence contrary to Pellar’s
testimony, we find that the factor of economy and effi-
ciency of operations favors the assignment of the work
in dispute to the Employer’s employees represented by
the Sheet Metal Workers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Sheet Metal
Workers International Association Local No. 73, and
Sheet Metal Workers International Association Local
No. 20, are entitled to perform the work in dispute.
We reach this conclusion by relying on the factors of
collective-bargaining agreements, the employer’s pref-
erence, past practice, and industry practice in the area,
relative skills, and economy and efficiency of oper-
ations. In making this determination, we are awarding
the work to employees represented by Sheet Metal
Workers International Association Local No. 73, and
Local No. 20, not to those Unions or their members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Crown Corr, Inc., represented by
Sheet Metal Workers International Association Local
No. 73, and Local No. 20, are entitled to perform the
disputed work subcontracted to the Employer by Ja-
cobs Constructors at the CornProducts facility.