Sheet Metal Workers, Local No. 223

National Labor Relations Board - Board Decisions

Sep 29, 1971

193 N.L.R.B. 406 (N.L.R.B. 1971)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association, Local
Union No. 223, AFL-CIO and Centex Winston
Corporation and Bricklayers , Masons , and Plaster-
ers' Union of America , Subordinate Union No. 7 of
Dade County , Florida . Case 12-CD-171
September 29, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge by Centex Winston Corporation, herein
called the Company, alleging that Sheet Metal
Workers' International Association, Local Union No.
223, AFL-CIO, herein called Local 223, had violated
Section 8(b)(4)(i)(ii)(D) of the Act by engaging in
certain proscribed activity with an object of forcing or
requiring Charles R. Poe Masonry, Inc., herein called
Poe Masonry, a subcontractor, and/or the Company,
to assign certain work to employees represented by it
rather than to employees represented by Bricklayers,
Masons, and Plasterers' Union of America, Subordi-
nate Union No. 7 of Dade County, Florida, herein
called the Masons. Pursuant to notice, a hearing was
held before Hearing Officer Carl A. Peterson on May
27, 1971, and continued before Hearing Officer Jack
T. Brellis on May 28 and June 1, 1971. All parties
appeared at the hearing,' and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, the Company and Local 223
filed briefs, which have been duly considered.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The rulings of the Hearing Officers made at the
hearing are free from prejudicial error. They are
hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Company is the developer, builder, and owner
of an apartment house complex in Miami Beach,
Florida, known as Winston Towers. During the 12
months preceding the hearing, the Company received
in excess of $50,000 worth of goods directly from
1 The Masons appeared only to make a claim to the disputed work.
2 Poe Masonry was the subcontractor for the installation of masonry
work, including the primary air duct systems , in the same building.
points outside the State of Florida. Poe Masonry
annually purchases materials directly from suppliers
outside the State of Florida valued in excess of
$50,000.
We find that the Company and Poe Masonry are
engaged in commerce within the meaning of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Masons and Local 223 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
The dispute pertains to the installation of masonry
block ventilating ducts (chases) in kitchens and
bathrooms at the Company's apartment house project
in Miami Beach, Florida.
A. Background
The Company is engaged in constructing seven
condominium apartment houses of uniform size and
design, named Winston Towers, in Miami Beach,
Florida. At the time of the hearing, two buildings,
Towers 100 and 200, were under construction. The
Company expects to complete Towers 300-700 over
the next 5 years.
The Company awarded a subcontract to The
Dublin Company, herein called Dublin Company, for
the installation of sheet metal ventilating ducts in the
kitchens and bathrooms of Towers 100.2 Upon
completion of the sheet metal duct work in Towers
100, Dade County building inspectors refused to
approve the work because the ducts did not meet
county fire code regulations. In order to comply with
the code, the Company was required to put additional
insulation around the sheet metal ducts at an
increased cost.
In order to continue to comply with the fire code
and to avoid the extra cost in using metal ducts, the
Company designed a "U" shaped masonry block3
especially for the ventilating systems in the kitchens
and the bathrooms in Towers 200-700. In the light of
these plans, the Company, on October 8, 1970,
contracted with Poe Masonry to perform " all mason-
ry work" on Towers 200, including the installation of
"all block for bathroom and kitchen exhaust" ducts.
Soon thereafter, Leonard Dublin, President of Metal
Fabricators, herein called Metal Fabricators, a
subsidiary of Dublin Company, received a call from
Respondent's business manager , Wallace Strong, who
3 The Company entered into an agreement with Maule Industries to
manufacture the block especially for the apartment project.
193 NLRB No. 61
SHEET METAL WORKERS, LOCAL NO. 223 407
informed Dublin that Metal Fabricators would have
to be the subcontractor for the installation of masonry
ducts if it warted to get men to do sheet metal work at
the Towers job.4 Dublin contacted the Company and
informed its officials of Strong's statement. As a
direct result of this incident, and to keep sheet metal
workers from walking off the job, the Company gave
Dublin a letter dated November 10, 1970, assigning
the disputed work to Dublin Company although there
was no contract between Dublin Company and the
Company at this time for any other work on Towers
200. On December 20, 1970, the Company entered
into a formal contract with Dublin Company for
heating, ventilating, and air-conditioning work in
Towers 200, but specifically excluded "masonry
chases for kitchen ventilating and masonry chases for
bathrooms."
Subsequently, on March 19 and 20, 1971, masons
and bricklayers employed by Poe Masonry5 began to
install the masonry ducts in kitchens and bathrooms
in Towers 200. On the following Monday, March 22,
1971, the sheet metal workers employed by Metal
Fabricators reported for work as usual, but soon
thereafter walked off the jobsite because bricklayers
and masons employed by Poe Masonry were at work
installing the masonry blocks for the ventilating
systems in the kitchens and bathrooms.
John Serko, the Company's project manager, met
with Strong for the purpose of resolving the dispute
and getting sheet metal workers back on the fob.
Strong asserted that there was no dispute and that the
work of installing masonry ducts was sheet metal
men's work. Strong indicated repeatedly that the
situation could be resolved: (1) if the Company took
the work away from Poe Masonry and gave it to sheet
metal men ; or (2) if masons continued to do the work,
but sheet metal men were paid to stand behind them
to watch the work being done. Strong told the
Company that if sheet metal men didn't get the work
in dispute, none of the sheet metal men would report
for work. The Company refused to agree to Strong's
suggestions . From the time of the walkoffs in March
and continuing until May 1971, when United States
District Judge Peter T. Fay issued a temporary
injunction against Local 223's withholding sheet
metal workers from the job, Local 223 refused to
supply more than one or two sheet metal men to do
the work that had to be done by Metal Fabricators 6
B. Contentions of the Parties
Local 223 contends that the Notice of Hearing
should be quashed because there is no evidence in the
record that it sought to require the Company to assign
the disputed work to its members rather than to
members of the Masons. Local 223 also contends that
it is prepared to submit the dispute to the National
Joint Board for the Settlement of Jurisdictional
Disputes. On the merits, Local 223 asserts that the
work should be assigned to its members. Finally,
Local 223 asks that if the work is assigned to masons,
the award should be limited to the Towers 200 job.
The Company contends, inter alia, that the assign-
ment should remain with employees represented by
the Masons, because masons possess the required
skills, the assignment is consistent with area and
industry practice, and the present assignment is more
efficient and economical. It also contends that the
assignment should include the entire project of seven
condominiums. The Masons claims the disputed work
for its members.
C. Applicability of the Statute
The charge herein alleges a violation of Section
8(b)(4)(D) of the Act. The facts show that the
Company contracted with Poe Masonry for perform-
ance of the disputed work, and that the latter assigned
the work to its employees who are members of the
Masons. Local 223 demanded that the Company take
the work away from Poe Masonry and assign it to
sheet metal workers. When the Company refused to
comply with this demand, Local 223 caused its
members to stay away from the job until the United
States District Court issued an injunction against
Local 223's conduct. Accordingly, we find, contrary
to Local 223's contention, that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated and that the dispute is properly before
the Board for determination under Section 10(k) of
the Act.
D. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors.?
As there is no Board certification of either Union,
neither Local 223 nor the Masons is favored by this
factor.
1. Collective-bargaining agreements
Local 223 claims the disputed work primarily
because of the jurisdictional provision of its collec-
4 Metal Fabricators is signatory to a standard form collective-
bargaining agreement with Local 223 which requires it to bid the entire job
for work that comes within the trade jurisdiction of the Sheet Metal
Workers International Association
5 Poe Masonry is a party to a collective-bargaining agreement with the
Masons Union
6 During this period one sheet metal man was sent to the job for one-
half day and on another occasion two men were sent to the job.
7 International Association of Machinists, Lodge No 1743 (J A Jones
Construction Company), 135 NLRB 1402, 1411
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive-bargaining contract with Metal Fabricators to
install "all ferrous or non-ferrous metal work . . . all
other material used in lieu thereof . . . and in
handling systems regardless of materials used." While
Local 223's contract is vague as to the work in dispute,
the Masons collective-bargaining contract with Poe
Masonry, the subcontractor herein, contains an
explicit provision covering all work performed on
several types of masonry, including the laying of
cement or concrete blocks. In these circumstances we
find that the Masons contract favors the assignment
to masons.
2. Company and industry practice
Poe Masonry is exclusively a masonry subcontrac-
tor and has performed on many other construction
sites in Florida. The evidence shows that it is a well
settled industry and area practice for masons and
bricklayers to install concrete blocks or masonry
materials in ventilating ducts. The materials used in
the project are masonry block similar in all respects,
except the shape, to other masonry blocks used in the
same type of ducts. Therefore, this factor favors the
assignment of the work in dispute to masons.
3. Skills and efficiency of operations
Both labor organizations claim that their respective
members are capable of performing the disputed
work. Masons perform the type of work in dispute on
a daily basis as part of their regularjobs, whereas the
evidence indicates that sheet metal men do not
usually install concrete or cement blocks in construc-
tion projects.
The record also shows that in order to comply with
the Dade County fire code it cost the Company an
additional $60,000 in Towers 100 to fireproof the
sheet metal ducts installed by sheet metal men. It was
for this reason that the Company designed a masonry
block to be used in the other units. It would be less
expensive to have masons install masonry block ducts
than to have sheet metal men install either masonry or
sheet metal ducts. The factors of cost and efficiency
therefore favor an assignment to masons.
4. Determination of the National Joint
Board
Local 223's contention that the Notice of Hearing
should be quashed is without merit as it is clear from
the record that there is no voluntary method for the
adjustment of the dispute. Contrary to Local 223's
contentions, the record clearly shows that the Compa-
ny is not required by contract and does not intend to
submit the dispute herein to the National Joint Board.
E. Scope of the Assignment
The Company requests that the Board issue an
award assigning the disputed work to masons for the
entire project of seven condominium apartments.
Local 223 requests that the award be limited to the
Towers 200 jobsite because the contracts for the
remaining units have not been let.
The record shows that the Company has definite
plans to use masonry ducts in the remaining units,
because they comply with the code, and are more
economical to install. The Company has also con-
tracted with Maule Industries to supply the blocks for
future use. In these circumstances, the identical
dispute is likely to recur at the remaining buildings to
be erected as part of the Winston Towers Project.
Accordingly, our determination will cover the disput-
ed work to be performed at Towers 300-700 as well as
at Towers 200.
F. Conclusions as to the Merits of the Dispute
In view of the foregoing, we believe that the work in
dispute should be awarded to employees represented
by the Masons. The fact that Poe Masonry's assign-
ment conforms to its own and area practices and is
consistent with its collective-bargaining agreement,
the fact that masons and bricklayers employed by Poe
Masonry not only have the requisite skills but are
familiar with all facets of the work in dispute, and the
attendant efficiency of operations lead us to conclude
that the Company' s and/or Poe Masonry's assign-
ment of the work is the proper one. Therefore, we
shall determine the dispute by assigning the work in
question to employees represented by Masons. In
making this determination, which is limited to the
Towers 200-700 buildings, we are not assigning the
work to the Masons or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following determination of the
dispute.
1. Employees employed by Charles R. Poe Ma-
sonry, Inc., who are represented by Bricklayers,
Masons and Plasterers' Union of America, Subordi-
nate Union No. 7 of Dade County, Florida, rather
than employees represented by Sheet Metal Workers'
International Association, Local Union No. 223,
AFL-CIO, are entitled to perform the work of
installing masonry ducts in kitchens and bathrooms at
the Company's Towers 200-700 project in Miami
Beach, Florida.
SHEET METAL WORKERS , LOCAL NO . 223 409
2. Sheet Metal Workers' International Associa-
tion, Local Union No. 223, AFL-CIO, is not entitled,
by means proscribed by Section 8(b)(4)(D) of the Act,
to force or require Centex Winston Corporation or
Charles R. Poe Masonry, Inc., to assign the above
work to sheet metal men represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers'
International Association, Local Union No. 223,
AFL-CIO, shall notify the Regional Director for
Region 12, in writing, whether it will refrain from
forcing or requiring Centex Winston Corporation or
Charles R. Poe Masonry, Inc., by means proscribed
by Section 8(b)(4)(D), to assign the work in dispute to
employees represented by Local 223 rather than to
employees of Charles R. Poe Masonry, Inc., who are
represented by the Masons.