Sheet Metal Workers Local Union 420

National Labor Relations Board - Board DecisionsSep 6, 1972

198 N.L.R.B. 1207 (N.L.R.B. 1972)

SHEET METAL WORKERS LOCAL UNION 420 1207 Sheet Metal Workers International Association, Local Union No. 420 , AFL-CIO ' and Rusco Building Systems , a division of Rusco Industries , Inc.2 and Orange County District Council of Carpenters, affiliated with the United Brotherhood of Carpen- ters & Joiners of America, AFL-CIO .3 Case 21-CD-299 September 6, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO construction and sale of buildings with an office located in Beverly Hills, California. The work in issue herein concerns the Huntington Beach project. During the year immediately preceding the hear- ing, Rusco sold and shipped goods and services valued in excess of $100,000 directly to customers located outside the State of California, and during a like period, Urbanetics purchased goods and materi- als valued in excess of $100,000 directly from suppliers located outside the State of California. Accordingly, we find that both Rusco and Urbanet- ics are engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Rusco on July 2, 1971, alleging that Sheet Metal Workers violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work described below to employees represented by Sheet Metal Workers rather than to employees represented by Carpenters. A hearing was held before Hearing Officer Scott Forman on February 16, 17, 22, and 23, 1972. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Respondent, the Employer, and the Carpenters filed briefs in support of their positions and they have been duly consid- ered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Rusco is a Delaware corporation with an office located at Fullerton, California. It is engaged in the manufacture and erection of residential structures. In January 1970, Rusco contracted to manufacture and install certain residential units at a housing project at Huntington Beach, California, for Urbanetics Finan- cial Corporation, a corporation engaged in the i Hereinafter sometimes referred to as Sheet Metal Workers or Respondent 2 Hereinafter sometimes referred to as Rusco or the Employer During the course of the hearing , Rusco adduced testimony to the effect that an agreement had been reached whereby Rusco was to be taken over in its entirety by Inter-American Hotels, Inc Rusco urged that any decision reached after the projected change in ownership, which was to have taken II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Sheet Metal Workers and the Carpenters are labor organi- zations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Rusco is engaged in the construction and erection of houses and residential units. By early 1970 it had developed a method of construction known as the Rusco system, whereby self-supporting and self- framing sections of housing units are constructed in its plant at Fullerton, California, and shipped to field housing sites for assembly or erection. The field work consists merely of attaching the complete sections together in proper order and location. The complete sections manufactured at the Fullerton plant include both the structural or load bearing subframe and the skin or siding. About the beginning of 1970, Rusco Industries, Inc., formed Rusco Building Systems Division. Harry Riegelman, a vice president and director of the parent firm, has been in charge of Rusco Building Systems Division since its inception . It also appears that Riegelman is the developer of the Rusco system of construction. On January 16, 1970, Rusco Industries, Inc., and Urbanetics entered into an agreement for construc- tion of housing units at Huntington Beach, Califor- nia, to be known as the "Family Affair" project. On April 3, 1970, Rusco through Riegelman assigned the disputed work described below to carpenters on all building sites. On July 1, 1970, Rusco became place on March 1, 1972, be directed at work assigned by the new corporate entity Subsequent to the hearing, Rusco advised the Board that the sale had been consummated on March 29, 1972. As the matter of the nature of the transaction and the relationship between Rusco and Inter-American Hotels, Inc , was not fully litigated , the record before us is insufficient to warrant granting Rusco's request The request is denied 3 Hereinafter sometimes referred to as Carpenters 198 NLRB No. 173 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signatory to the Carpenters Master Labor Agreement and to a Memorandum Agreement with Carpenters.4 Since July 1, 1970, Rusco has consistently assigned the work of assembly or erection of housing units at building sites to carpenters. The work at some 12 projects, including the "Family Affair" project, involving about 40 houses and 350 apartment units in Hawaii, Nevada, and California, have been thus assigned. Work on the "Family Affair" project did not begin until about May 1971. Respondent's Business Repre- sentative Prosser first observed carpenters engaged in the disputed work at the "Family Affair" project in May 1971. He contacted the Carpenters and was told that the Carpenters would not give up the disputed work. Peterson, Respondent's business manager, subsequently contacted Riegelman and according to Riegelman's testimony told him that the disputed work belonged to Respondent Sheet Metal Workers and that a picket line would be placed at the jobsite if the work were not reassigned to Respondent's members. Pursuant to Peterson's orders, picketing at the "Family Affair" jobsite began on June 30, 1971. Approximately five pickets carried signs which read: United Brotherhood of Carpenters and Joiners, Urbanetics Financial Corporation, Gen'l. Con- tractor All Unfair to Sheet Metal Workers Local Union No. 420. Because of Failure to Comply with National Joint Board Procedure for Settle- ment of Jursidictional Disputes, Building Con- struction Trades Council of Orange County, AFL-CIO. Respondent claims that the signs also included the wording "Information to the Public." The Respon- dent contends that the picketing was informational in nature, was not designed to cover a work stoppage, and in fact did not cause such a work stoppage. However, Rusco's Operations tmanager Gallaway testified that as a result of the picketing members of other labor organizations ceased working.5 The picket line was reinstated on July 7 and 8 and was removed on the morning of July 9, 1971. The Employer filed a charge on July 1, 1971, and an amended charge on July 7, 1971, alleging that it had assigned the disputed work described below to members of Carpenters pursuant to contract, and that on June 30, 1971, Respondent established a picket line which effectuated work stoppages on the project with a purpose of forcing or requiring the Employer to assign the work to members of Respondent rather than to members of Carpenters. 4 Rusco has also been in contractual relationship with Carpenters Local 530 for all production and maintenance work at its Fullerton, California, plant for some time " 5 Gallaway also testified that he copied down the language of the picket B. The Work in Dispute The parties did not stipulate as to the work in dispute. It is clear from the record, however, that the work in dispute is the erection of prefabricated steel panels utilized in home and residential unit construc- tion at the "Family Affair" project at Huntington Beach, California. C. The Contentions of the Parties The Respondent contends that jurisdiction should not be asserted in this case in that there is no reasonable cause to believe that a violation of Section 8(b)(4)(D) occurred because its picketing was informational in nature and not designed to effectu- ate a work stoppage, and that moreover it has disclaimed interest in the work in dispute. The Respondent further contends that all parties agreed, by contract or conduct, to submit this dispute to the National Joint Board for the Settlement of Jurisdic- tional Disputes,6 and that in fact an award was made by that body in favor of Respondent. Finally, the Respondent contends that if an affirmative award should be made, that it be in favor of Sheet Metal Workers on the basis of area and industry practice, the training and skills of its members, and resulting economy of operation. The Carpenters contends that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) occurred, that the Employer, Rusco, is not bound to submit the dispute to the Joint Board, and that an affirmative award should be made in its favor on the basis of the Employer's assignment, the collective- bargaining contract between Rusco and Carpenters, company and industry practice, its members' superi- or skills involving the work in issue, the economy and efficiency effected by utilization of carpenters, and the loss of employment which would occur if carpenters were taken off the work following an award to Respondent's members. The Employer also contends that a violation occurred and that it is not bound to the procedures of the Joint Board. It further contends that the Carpenters is not bound to the procedures of the Joint Board, that its assignment was properly made, and that the Board should award the work in dispute to members of the Carpenters in conformity with its assignment. The Employer asserts that such an award would be consistent with its contract with the Carpenters, and is supported by the historical practice of carpenters erecting houses by the efficien- cy and economy resulting in utilizing carpenters to signs during the picketing , and that they did not contain the wording "Information to the Public " F Hereinafter referred to as the Joint Board SHEET METAL WORKERS LOCAL UNION 420 1209 perform the work, and by the fact that carpenters are more readily available in the area than sheetmetal workers. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The record shows that the Employer assigned the work in dispute to carpenters in 1970. Actual work began about May 1, 1971, and Respondent contacted the Carpenters seeking a voluntary relinquishment of the work shortly thereafter. The Respondent then submitted its claim to the work to the Joint Board, and finally on June 30, 1971, began picketing the jobsite. In these circumstances, we deem without merit the Respondent's contention that the case is not properly before us because its motivation in picketing was merely informational,7 its picket signs indicated its informational intent," and it disclaimed interest in the disputed work at the hearing.9 As noted above, after seeking unsuccessfully to induce the Carpenters to relinquish the disputed work, the Respondent Sheet Metal Workers submit- ted the dispute to the Joint Board, and on June 18, 1971, the Joint Board rendered an award in favor of the Sheet Metal Workers. It is well settled, however, and the parties all recognize, that in order for the Joint Board's procedures to constitute an agreed- upon method for resolving the dispute such as would cause this Board to relinquish jurisdiction, all parties including the Employer must be bound to abide by the procedures of the Joint Board.10 The only evidence in the record which might conceivably serve as a basis for finding Rusco contractually bound to the procedures of the Joint Board is the fact that it entered into a Master Labor Agreement with the Carpenters on July 1, 1970. However, at the same time, Rusco and the Carpenters also entered into a Memorandum Agreement in which they specifically excluded themselves from the coverage of the Joint Board. In these circumstances, it is clear that Rusco is not contractually bound to the Joint Board. 7 Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No 631, international Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Reynolds Electrical and Engineering Co„ Inc), 157 NLRB 1621 8 Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Sorrow-Suburban Electric Co, Inc), 157 NLRB 715 9 Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Midwest Homes, Inc), 160 NLRB 261, Local 1291 , International Longshoremen's Association (Pocahontas Steamship Company), 152 NLRB 676, and 154 NLRB 1785 10 Plasterers Local Union No 79, Operative Plasterers and Cement Masons International Association of Houston, Texas (Southwestern Construction Company), 167 NLRB 185, 187 11 Electrical Workers Local 26, International Brotherhood of Electrical The Respondent contends, nevertheless, that Rus- co is bound to abide by the Joint Board's award by its course of conduct involving cooperation with that body's investigation of the dispute. When the Respondent submitted this dispute, the Joint Board as part of its investigation wrote to Rusco and requested information concerning the Employer's operation and the nature of the work involved. On behalf of Rusco, Riegelman replied with detailed information concerning the Rusco system. Neither Rusco nor Riegelman in any way further cooperated with the Joint Board or abided by its decision. The Board has held that an employer not contrac- tually bound to the processes of the Joint Board may nonetheless be so bound by its course of conduct.ii But those cases have involved far more evidence of intent to submit to the Joint Board than is here present, such as compliance with the Joint Board decision,12 submission of the dispute to the Joint Board,13 or otherwise affirmatively seeking aid from that body in resolving the dispute.14 It is well settled that the minimal degree of cooperation Rusco afforded the Joint Board in this case is not sufficient to establish that the Employer agreed to submit to the Joint Board.15 We so find here.16 Accordingly, on the basis of the entire record, we find there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determi- nation. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to all relevant factors. In International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Company), 17 the Board set forth the criteria to be considered in the making of an affirmative award in a Section 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certifications by the Board, company and indus- Workers, AFL-CIO (McCloskey & Ca), 147 NLRB 1498. 1503 12 Id 13 Wood Wire & Metal Lathers' International Union, Local 46, AFL-CIO (Jacobson & Co, Inc), 119 NLRB 1658, 1662 14 Local Union No 9, Wood, Wire, and Metal Lathers International Union, AFL (A W Lee, Inc), 113 NLRB 947,953 15 Local 450, International Union of Operating Engineers, A FL-CIO (Shne Industrial Painters ), 119 NLRB 1725, 1732, Local 173, Wood, Wire and Metal Lathers ' International Union, AFL-CIO (Newark & Essex Plastering Co), 121 NLRB 1094, 1104 16 In view of our finding in this regard, we need not pass on whether or not, in the facts of this case , Carpenters is bound to the Joint Board 17 135 NLRB 1402 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD try practice, agreements between unions and between employers and unions, awards of arbitra- tors, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business.18 1. Certification by the Board and arbitrators, other awards, and contracts Neither labor organization has been certified as the bargaining representative of employees of the Em- ployer. There are no relevant arbitration awards. As noted above, there is no agreement by all of the parties to submit the dispute to the Joint Board. As described more fully above, the Employer is in contractual relationship with the Carpenters covering employees at its Fullerton, California, plant. Since July 1, 1970, Rusco and the Carpenters have been parties to a Master Labor Agreement and a Memo- randum Agreement, under the terms of which Rusco has assigned the work in dispute to members of the Carpenters at the "Family Affair" project and a number of similar projects, and the Carpenters has represented the employees at all of those projects consistently. 2. The Employer's assignment and the Employer's preferences The Employer has assigned the work in dispute to members of the Carpenters, and it is abundantly clear that the Employer wishes to continue that assignment. 3. Industry practice, area practice, and the Employer's practice There is extensive evidence in the record to the effect that other employers both in the area of Rusco's operation and elsewhere around the nation erect basically metal buildings utilizing sheetmetal workers and ironworkers, depending on the gauge of metal involved. It also appears that in some in- stances, perhaps because only lighter gauge metal is being used, some jobs involved sheetmetal workers exclusive of ironworkers. Both the Employer and the Carpenters rebut that evidence contending that the buildings erected by members of Respondent are, for the most part at least, nonresidential in nature. It is not altogether clear from the record how significant that distinction might be. The Employer also contends that the unique nature of the Rusco system so profoundly affects the work in dispute-essentially by simplify- ing it-that the practice propounded by the Respon- dent is of little or no bearing. Finally, the Carpenters and the Employer adduced evidence of a number of metal residence construction projects being erected by other employers utilizing carpenters. Thus the pattern of assignment in the industry and in the area does not provide a clear basis for favoring award to members of either labor organization. The Employ- er's own practice, as stated above, is of course one of consistent assignment to carpenters. 4. Skills and work involved There is a great deal of evidence in the record concerning the Respondent's 4-year apprenticeship program and the skills possessed by a journeyman sheetmetal worker. However, other uncontradicted evidence in the record amply establishes the simplici- ty of the work in dispute and the lack of skills, such as those possessed by the sheetmetal workers, necessary to perform that work. Thus, it is clear that the work consists of joining prefabricated and complete sections of a housing unit. The only "special skill" required, so far as the record shows, is the ability to utilize a plumb and line in order to square original members of a structure. Yet, the record shows that when the Employer requires carpenters it does not seek men proficient with a plumb and line, but simply asks for carpenters. Indeed, Robert Miller, a Carpenters representative, testified without contradiction that a journeyman carpenter could begin joining the sections and assembling a building using the Rusco system within 5 minutes after going on the job. It does not appear therefore that the skills and training of either sheetmetal workers or carpenters provide them with any particular advantage in the performance of the disputed work. 5. Efficiency and economy of the Employer's operations It is clear from the record that carpenters are able to perform the entire work of erecting residential units using the Rusco system, and in fact they have done so. Respondent, on the other hand, would perform only the work involving metal, leaving that portion involving work with wood to carpenters and, indeed, that work involving heavier gauge metals to ironworkers. If the work were awarded to sheetmetal workers represented by Respondent, the Employer would be required to maintain costly and less efficient composite crews. It is clear therefore that the efficiency and economy of the Employer's operation favors the assignment of the disputed work Is Id at 1410-1411 SHEET METAL WORKERS LOCAL UNION 420 to carpenters, who, moreover, are paid less per hour than sheetmetal workers. CONCLUSION Based upon the entire record, and after full consideration of all the relevant factors, we conclude that the employees represented by the Carpenters are entitled to the work in dispute. Our present determi- nation is limited to the particular dispute involved herein . In making the determination , we are assign- ing the disputed work to employees who are represented by the Carpenters and not to the Carpenters 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 case, the National Labor Relations Board makes the following Determination of Dispute: Employees employed by Rusco Building Systems, a Division of Rusco Industries, Inc., and who are represented by Orange County District Council of Carpenters, affiliated with The United Brotherhood 1211 of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the erection of prefabricated steel panels utilized in home and housing unit construction at the "Family Affair" project at Huntington Beach, California. Sheet Metal Workers International Association, Local Union No. 420, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work as described above to individuals represented by Local 420. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers International Association, Local Union No. 420, AFL-CIO, shall notify the Regional Director for Region 21 , in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to individuals represented by Local 420 rather than to employees employed by the Employer who are represented by Orange County District Council of Carpenters, affiliated with The United Brotherhood of Carpenters & Joiners of America, AFL-CIO.