Sheet Metal Workers Local Union No. 359

National Labor Relations Board - Board Decisions

May 15, 1975

217 N.L.R.B. 987 (N.L.R.B. 1975)

SHEET METAL WORKERS LOCAL UNION NO. 359 987
Sheet Metal Workers Local Union No. 359, affiliated
with Sheet Metal Workers' International Associa-
tion , AFL-CIO' and ELT Piping and United As-
sociation of 'Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , Local No. 469 , AFL-CIO.2
Case 28-CD-152
gross volume of business in excess of $500,000. Accord-
ingly, we find, as the parties have stipulated, that the
Employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
May 15, 1975
DECISION AND ORDER QUASHING NOTICE
OF HEARING-
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by ELT Piping (herein called the Em-'
ployer), on January 23, 1974, alleging that Local 359
had violated, Section 8(b)(4)(D) of the Act by engaging
in certain proscribed activities with an object of forcing
the Employer to assign certain work to employees
represented by Local 359, rather than to a composite
crew made up of employees represented by both Local
359 and Local 469.
Pursuant to notice, a hearing was held before Hear-
ing Officer Samuel Slaff on September 4, 5, and 27,
1974. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. Thereafter, a brief was filed for the
Employer and Local 469, and a brief was filed by Local
359.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby
affirmed.' The Board has considered the briefs and
the entire record in this case and hereby makes the
following findings:
I THE BUSINESS OF THE EMPLOYER
The Employer is an Arizona corporation engaged as
a mechanical contractor performing plumbing, heat-
ing, air-conditioning, sheet metal, and millwright work.
The parties stipulated that during the representative
12-month period immediately before the hearing the
Employer purchased goods and materials valued in ex-
cess of $50,000 directly from sources outside the State
of Arizona and had delivered to it within the State of
Arizona goods and materials in excess of the value of
$50,000. During the same period, the Employer had a
1 Herein called Local 359
2 Herein called Local 469
3 Subsequent to the hearing Local 359 submitted a motion to file affidavit
and supplemental memorandum and the Employer and Local 469 filed a
response thereto. In view of our disposition of the case, we find it unneces-
sary to pass on the motion.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 359
and Local 469 are labor organizations within the mean-
ing of Section 2(5) of the Act.
III THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the handling, distri-
bution, and installation of work referred to by the Em-
ployer as terminal reheat units and referred to by Local
359 as mixing boxes at the Arizona Highway Depart-
ment Office Building at 17th Avenue and Johnson
Street in Phoenix, Arizona.
B. Background and Facts of the Dispute
On July 24, 1972, the Employer contracted with the
general contractor, Johnson & Son Building Co., to
install all heating, ventilating, air-conditioning, and
sheet metal work at the Arizona Highway Department
Office building jobsite. The Employer had contracts
with both Local 359 and Local 469. The installation
assignment for the terminal reheat units or mixing
boxes was originally demanded by both Locals 359 and
469 on a mutually exclusive basis. Edwin Titterington,
the Employer's president, testified that he had a meet-
ing with Local 359 Business Agent Jack Stewart in
early 1973, at which Stewart claimed all of the installa-
tion work. Titterington stated that he told Stewart that
if neither of the local unions nor the internationals
would resolve the jurisdictional problem, "I may elect
to have them shipped separately." Contrary to Titter-
ington, Stewart recalled that Titterington at this meet-
ing assured him that in the event that the two interna-
tionals could not get together he would assign the boxes
to Local 359, order the coils separately, and hang them
that way.
On July 5, 1973, the Employer made a written as-
signment of the disputed work to sheet metal workers
and pipefitters `on a composite crew basis. Thereafter,
the composite crew arrangement was carried out by
employees represented by each Union installing all of
the terminal reheat units or mixing boxes on. each alter-
nate floor of the Arizona Highway Department Office
Building.
217 NLRB No. 164
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent to the written assignment of the disputed
work, Bill Miller, Local 359 's business manager, told
Titterington that ELT "did wrong on the assignment
and that he would take [him] to the Joint Adjustment
Board." The Joint Adjustment Board is -a local board
and is part of the grievance procedure set up in the
collective-bargaining between ELT and Local 359. On
October 1, 1973, Local 359's business representative,
Richard Baehra, filed a written complaint against the
Employer with the Phoenix Sheet Metal Joint Adjust-
ment Board for allegedly violating its contract with
Local 359 by its assignment of the disputed work. The
Board is composed of an equal number of union and
employer representatives.
On November 14, 1973, a hearing on the matter was
held by the Phoenix Sheet Metal Joint Adjustment
Board. Titterington was present for the Employer and
Baehra and Stewart represented Local 359. By a unani-
mous decision, the board found that the composite
crew assignment violated the contract between the Em-
ployer and Local 359. The board assessed the Employer
damages of $800, of which $400 was to be paid immedi-
ately into the Phoenix Sheet Metal Joint Apprentice-
ship Committee and $400 was to be suspended for 2
years if no further violation was incurred during the
next 2 years. The damage award was never paid by the
Employer and Local 359 instituted a pending Section
301 suit in Federal district court to enforce the award.
Thereafter, when the Employer refused to comply
with the award, William Miller, Local 359's business
manager, wrote to David S. Turner, general secretary-
treasurer of Sheet Metal Workers International As-
sociation and secretary of the National Joint Adjust-
ment Board for the Sheet Metal Industry (NJAB), an
arbitration tribunal on the national level composed of
an equal number of employer and union representa-
tives, asked the tribunal to cancel the agreement be-
tween the Employer and Local 359 because of the for-
mer's noncompliance with the local board's award.
On February 6, 1974, in a decision addressed to the
Employer and Local 359, NJAB stated that the con-
tract "is cancelled effective 30 days following the re-
ceipt of this decision" unless the Employer paid the
assessed damage within 30 days. At this time, the Em-
ployer had contracts involving sheet metal work which
it subsequently decided not to perform. Titterington
wrote to Pacific Construction Co., which had ap-
proached the Employer for price quotations for a job,
that the Employer had been "threatened with a shut-
down by the Sheet Metal Workers which would render
it impossible for [the Employer] to fullfil [sic] contrac-
tual obligations." At the hearing, Titterington testified
that "when they decided to pull my agreement," he
considered that tantamount to a threat of shutdown.
Titterington stated that sheet metal workers in his em-
ploy worked until they were terminated by the Employer
or left for lack of work.
Local 359 business agents Stewart and Baehra testi-
fied they made specific appeals to sheet metal workers
to prevent the men from leaving the job in protest
against the composite crew work assignment. After the_
February 6, 1974, decision of the NJAB, Local 359
made no attempt to contact the Employer. On June 24,
1974, Local 359 signed a National Labor Relations
Board settlement agreement in Case 28-CE-16, pursu-
ant to which it agreed that the NJAB cancellation deci-
sion of February 6, 1974, would not be implemented
and that its contract with the Employer would be con-
tinued in full force and effect.
C. Contentions of the Parties
While the Employer, Local 469 , and Local 359 all
contend that a 1956 interim agreement between the two
internationals of the local unions herein governs the
dispute, they differ as to their interpretation of that
agreement, and, therefore , as to how the work should
be divided . Local 469 and the Employer claim that
according to the agreement the work should be
awarded to a composite crew of 50 percent sheet metal
workers and 50 percent pipefitters . Local 359 contends
that the agreement clearly establishes that the work
should be awarded exclusively to employees repre-
sented by it. The Employer and Local 469 maintain
that the factors of economy and efficiency of installa-
tion support a composite crew assignment and that area
practice is inconclusive. Local 359 maintains that area
practice preponderates in favor of the sheet metal
workers having the exclusive rights to the disputed
work, and disagrees that there would be any economic,
mechanical , or practical advantages in utilizing a com-
posite crew . Local 359 asserts that in any event the
Employer's discontinuance of the sheet metal work
phase of its business makes the issuance of a work
assignment determination unnecessary.
Finally, Local 359 contends that there is no reason-
able cause to believe that it violated Section 8(b)(4)(D)
of the Act as the only way it sought to enforce its claim
to the work assignment in dispute was by resort to the
contractual grievance procedure in its contract with the
Employer, and that all parties have agreed to be bound
by a determination of the new Impartial Jurisdictional
Disputes Board . The Employer and Local 469 assert
that reasonable cause does exist and that there is no
voluntary method of adjustment to which all the par-
ties have agreed to be bound.
D. Applicability of the Statute
Before the Board may proceed to a determination of
the dispute pursuant to Section 10(k) of the Act, it must
SHEET METAL WORKERS LOCAL UNION NO. 359
be satisfied that (1) the parties have not agreed upon a
method for the voluntary adjustment of the dispute,
and (2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated.
With respect to the issue of a voluntary method for
the adjustment of the dispute, we find for the reasons
stated below that an agreed -upon method exists inas-
much as all parties to the instant dispute are required
to submit their jurisdictional disputes to the new Im-
partial Jurisdictional Disputes Board for determina-
tion.
The current collective-bargaining agreement be-
tween Local 469 and the Plumbing and Air Condition-
ing Contractors of Arizona , with which the Employer
is affiliated , was executed on June 1, 1972 . That con-
tract provides that jurisdictional disputes are to be gov-
erned as follows:
Subject to the limitations of paragraph "B-6"
above, in the event a jurisdictional dispute cannot
be settled between the unions involved, then it is
hereby agreed that such plan for settlement of
jurisdictional disputes as is or may be adopted by
the American Federation of Labor, Building and
Construction Trades Department, shall be used.
The new Impartial Jurisdictional Disputes Board came
into being on June 1, 1973 . Hence the contract lan-
guage in the current agreement must be construed to
refer to the new board or its successors.
In addition , the new plan for the settlement of juris-
dictional disputes in the construction industry was ex-
ecuted by and between the Building and Construction
Trades Department, AFL-CIO, and a number of em-
ployer associations, including the Sheet Metal & Air
Conditioning Contractors National Association
(SMACNA). SMACNA as an employer association
participating in the plan executed a stipulation in ac-
cordance with the "recommended form" under the pro-
cedural rules and regulations of the Impartial Jurisdic-
tional Disputes Board by which it bound not only the
national association , but also its member chapters,
"by the terms and provisions of the agreement estab-
lishing the Impartial Jurisdictional Disputes Board."
This stipulation provided also that it "shall run for
the term of the agreement and shall continue in effect
for each year thereafter unless specifically terminated
effected upon the anniversary date of said agreement.
... " The, authority of SMACNA to bind its various
affiliated chapters, such as the Air Conditioning Con-
tractors of Arizona, the bargaining agent for the Em-
ployer , is contained in section 14 of the SMACNA con-
stitution and bylaws which states as follows:
Each Chapter and individual member shall be
stipulated to any national plan for settlement of
989
jurisdictional disputes established for the benefit
of the construction industry when said plan is ap-
proved by the Board of directors, or the Executive
Committee, acting on behalf of the Board.
Under the new plan , the obligations of an employer are
spelled out as follows:
Each Employer or Employer Association stipu-
lated to this plan agrees that all cases, disputes or
controversies involving jurisdictional disputes or
assignments of work arising under this Agreement
shall be resolved as provided herein and shall com-
ply with the decisions and awards of the Board,
Appeals Board or Hearing Panels established here-
under. A jurisdictional dispute is defined as a
dispute between unions over the assignment of
work and in which the Employer has an interest.
Both Sheet Metal Workers International Association
and the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, with which Local 359
and 469 are respectively affiliated , are members of the
Building and Construction Trades Department,
AFL-CIO, and as such are parties to the plan and
subject to the jurisdiction of the new Impartial Jurisdic-
tional Disputes Board created pursuant to the plan.
Article X of the constitution of the Building and
Construction Trades Department provides:
All jurisdictional disputes between or among af-
filiated National and International Unions and
their affiliated Local Unions and employers shall
be settled and adjusted according to the present
plan established by the Building and Construction
Trades Department, or any other plan or method
of procedure adopted in the future by the Depart-
ment for the settlement of jurisdictional disputes.
Said present plan or any other plan adopted in the
future shall be recognized as final and binding
upon the Department and upon all affiliated Na-
tional or International Unions and their affiliated
Local Unions.
Local 469 and the Employer rely on testimony of the
chief international representative for the Sheet Metal
Workers International Association , to the effect that
despite the aforementioned language of article X, the
international unions involved had , until May 1, 1974,
determined not to use the new Impartial Jurisdictional
Disputes Board in order to resolve jurisdictional dis-
putes existing between them . Despite any alleged pri-
vate agreement between the two competing Unions, we
conclude that article X must control so long as the two
Unions involved are members of the Building and Con-
struction Trades Department , and that the Unions
were required to submit jurisdictional disputes such as
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the present one to the new Impartial Jurisdictional Dis-
putes Board.
In view of the foregoing , we fmd that all parties have
agreed to be bound by a determination of the new
Impartial Jurisdictional Disputes Board .' Accord-
ingly, we shall quash the notice of hearing issued
herein.
ORDER
It is hereby ordered that the notice of hearing issued
in this proceeding be, and it hereby is , quashed.
MEMBERS JENKINS AND KENNEDY, dissenting:
We disagree with the finding of our colleagues that
all parties have agreed to be bound by a determination
of the new Impartial Jurisdictional Disputes Board
(heareafter IJDB). Accordingly , we would issue a deci-
sion to resolve the jurisdictional dispute which is now
pending before this Board.
Section 10(k) provides that whenever an 8(b)(4)(D)
charge is filed this Board is empowered and directed to
determine the underlying dispute unless the parties can
show that they have "adjusted , or agreed upon methods
for the voluntary adjustment of, the dispute." (Empha-
sis supplied .) There is no evidence in this record which
indicates that the parties have voluntarily submitted, or
agreed to submit , the instant dispute to the new IJDB.
Indeed, the evidence is to the contrary. At the time the
work assignment giving rise to this dispute was made,
the two international labor organizations involved had
agreed not to utilize the new IJDB to resolve their
differences.
The new IJDB was inaugurated on June 1, 1973,
through an agreement executed between the Building
and Construction Trades Department, AFL-CIO, and
a number of employer associations . The work assign-
ment now in dispute was made approximately 1 month
later on July 5 , 1973. That the two international unions
involved herein were not utilizing the IJDB in July
1973 is clearly established through the testimony, of
Respondent 's own chief international representative
and head of its jurisdictional department, George
Dowler .5 On direct examination , Dowler testified as
follows:
4 In view of this finding, we find it unnecessary to pass on whether there
was reasonable cause to believe that Sec . 8(b)(4)(D) has been violated
5 As head of the jurisdictional department , it is Dowler 's responsibility to
present cases to the IJDB on behalf of Respondent.
Q. And to your knowledge , are disputes involv-
ing those two trades (Sheet Metal Workers and
Pipe Fitters) handled before the Impartial Dis-
putes Board at the present time?
A. They are at the present time.
Hearing Officer : You emphasize "at the present
time," Mr. Dowler . At what point, back, were
they not so handled?
The, Witness: Prior to May 1st of this year
(1974).
Hearing Officer : Very well.
Q. What was the case then . Mr. Dowler?
A. There was an agreement between the two
Internationals that we did not use the procedures
of the Dispute Board.
The May 1, 1974, date referred to by Dowler is
crucial . For it was on that date that the two interna-
tionals agreed that for a period of 6 months thereafter
they would utilize the IJDB . The agreement reads in
pertinent part as follows:
For an interim period of six months, beginning
May 1, 1974, it is agreed by all parties that any
jurisdictional dispute between the two trades
(Sheet Metal Workers and Pipe Fitters) will ini-
tially be presented to both international presi-
dents. If after review by the two parties, the par-
ticular matter remains unresolved , it will be
referred to the Impartial Jurisdictional Disputes
Board for the Construction Industry. Either or
both international presidents may refer a dispute
to the Board.
Taken together , Dowler 's testimony and the May 1,
1974, agreement clearly establish that on the date of the
work assignment neither international had voluntarily
agreed to be bound by the IJDB procedures.' Our col-
leagues nevertheless conclude that they were bound by
virtue of their membership in the Building and Con-
struction Trades Department , AFL-CIO. Article X of
the constitution of that department provides for IJDB
resolution of all jurisdictional disputes between af-
filiated labor organizations.
6 This of course explains why the dispute never was actually submitted
to the IJDB for resolution In addition , the agreement not to be bound was
merely a continuation of prior policy The internationals had also refused
to be bound by the IJDB 's predecessor-the National Joint Board for the
Settlement of Jurisdictional Disputes-choosing instead to resolve lunsdic-
tional disputes at the local level
SHEET METAL WORKERS LOCAL UNION NO. 359
We think our colleagues misconstrue our role under
Section 10(k). We are concerned with whether the par-
ties have voluntarily agreed upon a method for resoly-
ing their differences-not with whether they are com-
plying with the requirements of their constitution. It
may well be that the agreement not to utilize the IJDB
procedures is inconsistent with article X of the Building
and Construction Trades Department , AFL-CIO, con-
stitution . But that is a matter for the Building and
Construction Trades Department to resolve , not us.
991
For our purposes , the crucial evidence is that when the
work assignment in question was made the two interna-
tionals had agreed between themselves for whatever
reason-not to utilize the IJDB procedures . Accord-
ingly, there does not exist an "agreed-upon method"
for the voluntary adjustment of the dispute herein.
In our judgment , we are compelled by the require-
ments of Section 10(k) to determine this jurisdictional
dispute.