Sheet Metal Workers Union No. 9

National Labor Relations Board - Board DecisionsJun 1, 1973

203 N.L.R.B. 1095 (N.L.R.B. 1973)

SHEET METAL WORKERS UNION NO. 9 Sheet Metal Workers Union No . 9 and Straight Creek Constructors and International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 24, AFL-CIO. Case 27-CD-151 June 1, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Straight Creek Constructors, herein- after called the Employer, alleging that the Sheet Met- al Workers Union No. 9, hereinafter called the Sheet Metal Workers, has violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held on Janu- ary 17 and 19, 1973, before Hearing Officer John F. Sayre. The International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 24, AFL-CIO, hereinafter called the Iron Workers, the Sheet Metal Workers, and the Employer 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 Employer, the Iron Workers, and the Sheet Metal Workers, all filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is a joint venture consisting of several construction companies engaged in the construction of a highway tunnel near Georgetown, Colorado, and that, during the course of its operations, the Employer annually purchases and receives goods and materials directly from sources located outside the State of Colorado which are va- lued in excess of $50,000. The parties stipulated, and we find, that the Employer is engaged in a business affecting 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. II. THE LABOR ORGANIZATIONS INVOLVED 1095 The parties stipulated, and we find, that the Sheet Metal Workers and the Iron Workers are labor orga- nizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute The Employer, a joint venture, is engaged in the construction of an interstate highway tunnel near Georgetown, Colorado, which is known as the Straight Creek Tunnel, herein called the Tunnel. The work in dispute involves the installation of 14-gauge procelain enamel ceiling panels, a suspension system, and .080 aluminum porcelainized closure panels on the Tunnel. To perform the work in dispute, the Em- ployer used its own employees who are represented by the Iron Workers under a collective-bargaining agree- ment with the Employer. The Employer does not have a collective-bargaining agreement with the Sheet Met- al Workers covering this project nor does it utilize the services of sheet metal workers in connection with the performance of this work. In September 1972, the Employer ordered the in- stallation of a test section of the ceiling, using its employees represented by the Iron Workers to per- form the work. The Sheet Metal Workers business manager, Curtis Guidry, protested the Employer's as- signment to the ironworkers and requested a meeting of the parties to attempt to resolve the matter. Such a meeting was held on October 24, 1972, and it was attended by Guidry and Leroy Gauthier of the Sheet Metal Workers, Attorney Grover for the Employer, and Felix Poletto representing the Iron Workers. The parties were unable to reach an accord during the meeting. On October 24, when no agreement was reached, the Employer formally assigned the disputed work to its employees represented by the Iron Work- ers. When this assignment was made, the Sheet Metal Workers business agent, Guidry, expressed the view that there would be "trouble" on the jobsite due to the assignment to the ironworkers. The next day, October 25, the Sheet Metal Workers submitted the dispute to the National Joint Board for settlement of jurisdictional disputes of the building and construction industry. A further attempt to re- solve the dispute was made on November 15, when the International representatives of both Unions met at the jobsite and discussed the matter; however, no solution was reached. On December 15, the National Joint Board handed down its award in favor of the claim made by the Sheet Metal Workers. Following 203 NLRB No. 171 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this , the Sheet Metal Workers made repeated attempts to have the Employer comply with the award, but they were to no avail. On December 20, during a conversa- tion between Grover, the Employer's attorney, and Gauthier, the business agent for the Sheet Metal Workers, Gauthier told Grover that, if the matter were not settled, he could give no assurance whatsoever that there would not be picketing by December 22. On December 22, the Sheet Metal Workers commenced picketing with signs bearing the following legend: Sheet Metal work being done by Straight Creek Construction is being performed under substan- dard working conditions. Sheet Metal Workers #9. The picketing continued until January 5, when it was enjoined by the United States District Court for the District of Colorado. B. Contentions of the Parties The Sheet Metal Workers contend that the Board should not render a determination pursuant to Sec- tion 10(k) because there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated; that there exists an agreed-upon method for the voluntary adjustment of this dispute; and, alternatively, that the pertinent factors involved favor an award to employ- ees represented by them. The Employer and the Iron Workers contend,joint- ly, that there is in fact reasonable cause to believe that Section 8(b)(4)(D) has been violated and there is no agreed-upon method for the voluntary adjustment of this dispute. Further, they contend that a consider- ation of all the relevant factors supports the Employer's assignment of the disputed work to its employees represented by the Iron Workers. C. Applicability of the Statute Before the Board may proceed to a determination of a 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 Sheet Metal Workers bases its claim that there is an agreed-upon method for voluntary settlement of the dispute on a clause contained in the Employer- Iron Workers agreement which, in essence, provides that disputes shall be referred to the International Unions of the respective competing Unions and if the said International Unions resolve the dispute by mak- ing an assignment determination, such determination shall be binding on the Employer and each of the said Unions. However, as previously indicated, the evi- dence shows that, in this case, the International repre- sentatives were unable to reach agreement with respect to the dispute and, accordingly, it must be concluded that the contractual provision did not be- come operative insofar as it relates to this dispute. Also, the evidence is clear that the Employer has not agreed to the submission of such disputes to the Joint Board or to be bound by their determinations. In fact, when the instant dispute was referred to the Joint Board, the Employer specifically advised the Board that it had not agreed to be bound by their determina- tions and would not abide by their award. According- ly, we conclude that the parties have no agreed-upon method for resolving this dispute. Further, the evidence shows that the Sheet Metal Workers claimed the work in dispute for its members and continued to press that claim at all relevant times. Although the Sheet Metal Workers claim that its pick- eting of the project was in support of an area stan- dards object, there is no evidence, other than the language of the signs themselves, to support this con- tention . On the other hand, there is testimony in the record which would indicate that this picketing had an object of forcing the Employer to reassign the dis- puted work to members of the Sheet Metal Workers. Thus, when the Employer formally assigned the work to its employees, represented by the Iron Workers, the Sheet Metal Workers business agent, Guidry, indi- cated that there would be trouble on the jobsite due to the assignment to the ironworkers. Then, later, when the Employer refused the Sheet Metal Workers request that it comply with the Joint Board's award, Sheet Metal Workers business agent, Gauthier, alleg- edly told Employer's attorney, Grover, that if the mat- ter were not settled he (Gauthier) could give no assurances that there would not be picketing by De- cember 22. On December 22, the Sheet Metal Work- ers commenced picketing the jobsite and continued such activity until January 5. Based on the foregoing, we conclude that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. Accordingly, we conclude that this matter 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 involved. The following factors are relevant in making a determina- tion of the dispute before us. 1. Efficiency, economy, integration of operations, skills, safety, and availability of workers The record shows that the Employer began hiring SHEET METAL WORKERS UNION NO. 9 1097 ironworkers as soon as the tunnel project began and that it did not intend to use members of the sheet metal trade in its operations. As a result, the Employer's ironworkers were familiar with the re- quirements of the job and, as they were actually per- forming the work in question, the use of sheet metal workers would have resulted in their replacement. There is also testimony by the Employer's project manager that greater efficiency and flexibility was achieved by using these ironworkers to perform the work in question , since it is possible to reassign the ironworkers to perform other work on the project, whenever the disputed work is halted. The evidence shows that the employees represented by both com- peting Unions can perform the work with satisfactory skill and safety. The evidence also shows that both competing Unions are able to supply ample personnel to perform the disputed work. Although the evidence regarding the relative availa- bility, skill, and safety of employees represented by the competing Unions is inconclusive , it is clear that the assignment of the disputed work to these iron- workers results in greater efficiency on the job and a more stable work force since ironworkers are already familiar with the project and can easily be transferred by the Employer to other jobs. Also, an assignment to the sheet metal workers would require the Employer to hire additional employees. 2. Employer's assignment and collective-bargaining agreements As mentioned above, the Employer has assigned the disputed work to employees represented by the Iron Workers. The Iron Workers, by its contract with the Employer, claims jurisdiction of "All work in con- nection with . . . hanging ceilings, hangers, brackets ... erection of . . . panels, insulated and noninsulat- ed, factory and field assembled, procelain enameled panels." The Employer has no collective-bargaining agreement with the Sheet Metal Workers. Although the Employer contends that its collective-bargaining agreement does not require it to assign the work to members of the Iron Workers, it notes that its con- tract provisions more specifically cover the work. We have considered this factor and it appears that the specific language in the Iron Workers agreement more nearly covers the work herein. 3. The Joint Board award Joint Board award to be binding on the Employer, we do consider it a factor in determining the proper as- signment of the work in dispute. The Joint Board award favors the claim made by the Sheet Metal Workers. However, in its claim to the Joint Board, it seeks only the installation of the porcelain enamel ceiling and the Joint Board award only covers that aspect of the work. In view thereof and since the Joint Board award covers only a part of the work here in dispute we cannot and do not rely on this determina- tion. 4. Area practice Both competing Unions proffered evidence which shows that employees represented by their respective organization have performed service similar to the work in dispute here. In view thereof, we are of the opinion that the evidence regarding that factor is in- conclusive and favors the claim of neither Union. Conclusion Upon the entire record in this proceeding and after full consideration of all relevant factors and argu- ments, we conclude that employees of Straight Creek Constructors who were assigned the work in dispute are entitled to continue doing the work, and we shall determine the dispute in their favor. We reach this conclusion based upon the fact that the Employer's assignment of the disputed work to its employees rep- resented by the Iron Workers is not inconsistent with the current collective-bargaining agreement between the Iron Workers and the Employer, the fact that the employees represented by the Iron Workers possess the requisite skills to perform the work, and the fact that such assignment will result in greater economy and efficiency of operations. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the Straight Creek Tunnel near George- town, Colorado, to those employees represented by the Iron Workers but not to that Union or its mem- bers. In consequence, we also find that the Sheet Met- al Workers 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 to employees represented by it. DETERMINATION OF DISPUTE As indicated, supra, though we do not consider the 1 The parties, by joint stipulation, submitted a Sheet Metal Workers agree- ment for this locale (Employer not a party thereto) and we have considered the language contained therein. 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 pro- ceeding , the National Labor Relations Board hereby makes the following Determination of Dispute: 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Employees of Straight Creek Constructors who are represented by International Association of Bridge, Structural and Ornamental Iron Workers, Lo- cal Union No . 24, AFL-CIO, are entitled to perform the work of erecting porcelain enamel panels , the sus- pension system, and .080 aluminum porcelanized clo- sure panels at the Straight Creek Tunnel near Georgetown, Colorado. 2. Sheet Metal Workers Union No . 9 is not enti- tled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Straight Creek Constructors to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet MetalWorkers Union No. 9 shall notify the Regional Director, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Sec- tion 8(b)(4)(D) of the Act, to assign the work in dis- pute to employees represented by Sheet Metal Workers Union No. 9 rather than to employees repre- sented by the International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 24, AFL-CIO.