Steel Metal Workers, Local 541

National Labor Relations Board - Board Decisions

Jul 8, 1968

172 N.L.R.B. 1046 (N.L.R.B. 1968)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association
(AFL-CIO), Local No. 541 and Kingery Con-
struction Company and Pinkston -Hollar Con-
struction Services of Omaha , Inc. and United
Brotherhood of Carpenters and Joiners of Amer-
ica, Local Union No . 1055 , AFL-CIO. Case
17-CD-97
July 8, 1968
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by Kingery Construction
Company, herein called Kingery, alleging that
Sheet Metal Workers' International Association
(AFL-CIO), Local No. 541, herein called the Sheet
Metal Workers, had violated Section 8(b)(4)(D) of
the Act. The charge alleges, in substance , that the
Sheet Metal Workers engaged in and induced and
encouraged individuals employed by Kingery and
other interstate employers to engage in a strike and
work stoppage with an object of forcing and requir-
ing Pinkston-Hollar Construction Services of
Omaha, Inc., herein called Construction Services,
to assign certain work to members of the Sheet
Metal Workers rather than to its own employees
who are members of the United Brotherhood of
Carpenters and Joiners of America, Local Union
No. 1055, AFL-CIO, herein called the Carpenters.
A hearing was held on July 20 and 21, 1967,' be-
fore Hearing Officer Frederick C. Herzog. All
parties except the Carpenters actively participated
in the hearing and were afforded full opportunity to
be heard, to examine and cross- examine witnesses,
and to adduce evidence bearing on the issues.
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
powers in connection with this case to a three-
member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed. The Sheet Metal Workers, Kin-
gery, and Construction Services filed briefs which
have been duly considered.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated that Kingery, a Nebraska
corporation, and Construction Services, a Texas
corporation, are engaged in commerce within the
meaning of the Act. It was further stipulated that
both corporations are engaged in the building and
construction industry and that each annually
purchases goods valued in excess of $50,000 from
persons and/or enterprises located outside the
respective States where they are either incor-
porated or working.
We find, accordingly, that the Employers are en-
gaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
If. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Sheet Metal Workers and the Carpenters are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work in Dispute
The work which gave rise to this proceeding is
the handling and installation of acoustical tile
ceilings covered by a metal pan at a new high
school building project in Lincoln, Nebraska. The
job tasks involved in this work consist of the follow-
ing consecutive steps: (1) installation of heavy
gauge galvanized wire hangers which attach to the
roof structure of the building; (2) attachment to the
hangers of inch and one-half black iron channels at
4-foot intervals; (3) attachment of snap tees to the
channels by means of special hooks; (4) installation
of wall molding around the perimeter; and (5) in-
stallation of metal pan units, including grids and
sound absorption pads. In this proceeding, Sheet
Metal Workers claim only steps 3, 4, and 5, and do
not dispute continued assignment of steps 1 and 2
by Construction Services to its employees.
B. The Background
Construction Services has a permanent special-
ized crew of employees who perform all of the
work involved in the installation of various types of
acoustical ceilings, including the disputed metal
' All dates appearing hereinafter will be in 1967, unless otherwise in-
dicated
172 NLRB No. 108
SHEET METAL WORKERS , LOCAL 541
pan type. These employees are members of Carpen-
ters, but Construction Services does not recognize
any labor organization as their collective-bargaining
representative.
In November 1966, pursuant to its subcontract
with Kingery, the general contractor at the instant
project, Construction Services commenced the in-
stallation of acoustical ceilings with its normal com-
plement of employees. In addition to 133,200
square feet of fiberglass or mineral board ceiling,2
the subcontract called for the installation of 6,800
square feet of metal pan ceiling. Although
requested by Sheet Metal Workers in mid-January
to assign the disputed portion of the metal pan
work to its members, Construction Services began
this phase of the subcontract in February, assigning
all of the job tasks involved to the same employees
who had been installing the fiberglass or mineral
board ceiling. Sheet Metal Workers submitted the
dispute to the National Joint Board for the Settle-
ment of Jurisdictional Disputes which on April 7
requested information from Construction Services,
and on April 12 issued an award in favor of Sheet
Metal Workers. Construction Services, on the occa-
sion of both the request and the award, advised the
Joint Board that it had not agreed to be bound by
any Joint Board award, and continued performance
of the work with its own employees.
On May 22, Sheet Metal Workers advised Con-
struction Services that if the latter continued to as-
sign the disputed work to carpenters, it "had only
one other course of action to take," and picketed
the project on May 24, 25, and 26 with a placard
reading:
Information picket, Construction Services
Company refuses to comply with National
Joint Board's decision concerning the job.
Sheet Metal Local 541. This dispute with
above contractor only.
After the picketing began, Construction Services
worked outside the project's normal working hours,
but picketing continued during those hours , causing
a work stoppage by all other crafts. Picketing
ceased on May 26, and Construction Services
completed its subcontract.
C. Contentions of the Parties
The Sheet Metal Workers admits seeking and de-
manding the work in dispute, but contends it did
1 This type of ceiling entails the same work as set forth above except that
the final step is a fiberglass or mineral board insert, rather than a metal pan,
1047
not violate Section 8(b)(4)(D) as the picket line
was solely for informational purposes. It further
contends that any dispute that previously had ex-
isted was settled by virtue of the submission of the
matter to the National Joint Board and its sub-
sequent award. In this latter connection, the Sheet
Metal Workers takes the position that Construction
Services is bound by the award on the basis of a
"Participation Agreement" signed on its behalf by
an alleged supervisory employee. Lastly, it argues
that, in any event, based upon area practice and
skills, its members are entitled to the work, and that
no dispute currently exists since the work has been
completed.
Construction Services and Kingery take the posi-
tion that based upon skills, relative efficiency,
economy, and area practice the Carpenters are en-
titled to the work in dispute. They further argue
that they are entitled to a determination of the
dispute, despite the fact that the precise work in
dispute has been completed, since similar disputes
are sure to arise in the future. Lastly, they take the
position that Construction Services is not bound by
the award. In this latter connection, they claim that
the "Participation Agreement" was in any event
merely an agreement to pay certain moneys into
the Carpenters Health and Welfare fund for each
Carpenter member on its payroll.
D. Applicability of the Statute
Before the Board may proceed to a determina-
tion of dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is a reasonable
cause to believe that Section 8(b)(4)(D) has been
violated.
As indicated above, the record contains ample
and uncontradicted evidence that in January 1967
and thereafter on May 22, 1967, the Sheet Metal
Workers sought and requested Construction Ser-
vices to assign the disputed work to the Sheet Metal
Workers rather than the Carpenters, and on May
24, 25, and 26, 1967, a picket line was established
at the jobsite which caused a work stoppage by all
crafts.
We find there is reasonable cause to believe that
violations of Section 8(b)(4)(D) have occurred,
and its assignment to tot0 by Construction Services to the latter's em-
ployees is not disputed by Sheet Metal Workers
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the dispute is properly before the Board
for determination under Section 10(k) of the Act.3
E. The Merits of the Dispute
As stated in the J. A. Jones case4 we shall, pur-
suant to the Supreme Court 's C.B.S . decision,'
determine in each case presented for resolution
under Section 10(k) of the Act the appropriate as-
signment of the disputed work only after taking into
account the evidence supporting the claims of the
parties and balancing all relevant factors.
1. Certification and bargaining agreements
There is no certification or collective-bargaining
agreement covering the disputed work, so neither
the Sheet Metal Workers nor the Carpenters is
favored by these factors.
2. Employer and area practice
Construction Services has a crew of carpenters
who spend 8 hours a day, 50 weeks a year, in-
stalling acoustical ceilings, including the metal pan
variety which is the subject of the instant dispute.
Construction Services has used carpenters for the
installation of metal pan ceilings on other projects
in the Lincoln, Nebraska, area, and its practice is to
use carpenters for this type of work in other areas
of the country More specifically, Construction Ser-
vices installed a metal pan ceiling with individuals
who were members of the Carpenters at the
Tecumseh Power Plant, approximately 35 miles
from Lincoln, Nebraska, and of eight projects in
the area of Omaha, five metal pan ceilings were in-
stalled by carpenters, one was installed by sheet-
metal workers, and two were installed by in-
dividuals who were members of both crafts.
Representatives of two large acoustical ceiling con-
tractors testified that since 1957 they had installed
13 ceilings of the metal pan variety in various proj-
ects in the Lincoln area. With the exception of one
job whereon one sheetmetal worker was employed,
all work was performed by individuals who were
carpenters. On the other hand, another acoustical
.ceiling contractor and the business agent for the
i The Sheet Metal Workers , relying upon the "Participation Agree-
ment ," contend that as all the parties had agreed upon a voluntary method
of adjustment of the dispute , the notice of hearing should be quashed In-
asmuch as the "Participation Agreement ," by its own terms , is limited to
the Carpenters Health and Welfare Program and makes no mention what-
soever of terms or conditions of employment, nor incorporates by
reference or otherwise the Carpenters areawide agreement calling for the
submission of jurisdictional disputes to the National Joint Board, we find
Sheet Metal Workers testified that metal pan ceil-
ings were installed in six projects in the Lincoln
area by sheetmetal workers. They further testified
to the installation of a metal pan ceiling in a seventh
project which was installed by both carpenters and
sheetmetal workers.
The fact that , so far as the record shows, a
majority of the metal pan ceilings in the area were
installed by members of the Carpenters, and that
Construction Services generally utilizes carpenters
for this type of work are factors favoring the assign-
ment of the disputed work to employees
represented by the Carpenters.
3. Relative skills and efficiency of operation
Construction Services contends that its carpen-
ters have approximately four years of experience in
the work of installing metal pan ceilings and that
they are qualified to do the job with a minimum of
supervision. It further contends that experience has
proven that it is more efficient and economical to
do a complete job with these employees rather than
to swith trades after the first two steps of the instal-
lation have been completed. In this latter connec-
tion, Construction Services points out that a car-
penter can be used on other acoustical ceiling work
in the project when not employed on the disputed
work, while the sheetmetal workers would have to
wait until more of the disputed work is reached. It
also contends, and the record supports the conten-
tion , that the installation of metal pan ceilings is
only about 10 percent of its overall acoustical ceil-
ing work, and that the Sheet Metal Workers does
not have readily available at its Union hall sheet-
metal workers with any extensive experience in in-
stalling metal pan ceilings.
The Sheet Metal Workers contends that its mem-
bers alone possess the requisite skills to install the
metal pan ceiling. In support of its position, the
Sheet Metal Workers claims that only its members
have the correct tools for the job. The Sheet Metal
Workers representative admitted, however, that
normally all the metal on the job comes to the job
premeasured.
The Board is satisfied from the entire record that
while sheetmetal workers are qualified to do the in-
stallation, the carpenter employees of Construction
Services have more experience. It is further con-
vinced that in view of the overlap involved in the
various steps necessary to install a completed ceil-
ing, it would be more economical and efficient to
this contention without merit It is unnecessary , therefore, to resolve the
status of the individual who allegedly signed this document on behalf of
Construction Services
' International Association of Machinists, Lodge No 1743, AFL-CIO (J
4 Jones Construction Co ), 135 NLRB 1402
N L R B v Radio and Television Broadcast Engineers Union, Local
1212 (Columbia Broadcasting System), 364 U S 573
SHEET METAL WORKERS , LOCAL 541
use only one craft rather than fragmentize the
work."
4. Action of the Joint Board
The Sheet Metal Workers and the business
representative of the Carpenters agree that they are
bound by the Joint Board. However, inasmuch as
Construction Services had not agreed to be bound
by any decision of the Joint Board, the decision by
that body with respect to the instant dispute is
merely one of the factors which we must consider
in assigning the disputed work . In view of all the
circustances , including the absences of any showing
in the record as to the basis for the Joint Board
determination , the Board is of the opinion that the
Joint Board award should not be accorded con-
trolling weight.'
5. Disclaimer
The Sheet Metal Workers contends that the Car-
penters has disclaimed the disputed work and
therefore no jurisdictional dispute exists . In support
:)f its contention , the Sheet Metal Workers relies
upon the fact that the Carpenters business agent
agreed to the submission of the matter to the Na-
tional Joint Board and testified at the hearing that
the Carpenters is bound by the award. However,
the president of the Carpenters local union claimed
the disputed work and testified that a majority of
the executive committee of the local union, sub-
sequent to the National Joint Board award , decided
to claim the disputed work. The record further in-
dicates that subsequent to the Joint Board award
the carpenters continued to perform the disputed
work and completed the job.
In view of the aforementioned circumstances, we
cannot agree that the disclaimer is a controlling
factor in the instant case."
6. The question of mootness
The Board has frequently held that a jurisdic-
tional dispute is not moot , despite the completion
of the work involved , where there is evidence of
similar disputes between the parties in the past, and
nothing to indicate that such disputes will not arise
in the future .9 In the instant case , Construction Ser-
vices has every expectation of performing work
again in the areas of geographical jurisdiction
covered by the Sheet Metal Workers, and there is
no evidence in the record indicating that disputes
will not occur in the future . Accordingly, we find
'Local 69 , United Association of Journeynien and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO ( Bellezza Compan) , Inc ), 149 NLRB 599
' Local 964, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO ( Carleton Brothers Company), 141 NLRB 1138, United Brother-
hood of Carpenters and Joiners of America, Local No 5/5 (J 0 Veteto &
Son), 148 NLRB 351
" Cf Cement Masons ' Local Union No 524, affiliated is ith the Operative
1049
that the dispute is not moot and shall make an as-
signment of the disputed work.
Conclusion as to the Merits of the Dispute
Having considered all pertinent factors , we con-
clude that carpenters employed by Construction
Services are entitled to perform the work in
dispute . They are as competent and skilled in the
performance of the work as members of the Sheet
Metal Workers, are more experienced , and have
performed it to the satisfaction of Construction Ser-
vices, who desires to retain them on its operations.
The present assignment of the disputed work is
consistent with Construction Services' past prac-
tices and with that of other employers engaged in
the same operations in the area . The efficiency with
which such employees may accomplish the in-
tegrated task of preparing the ceilings and installing
the metal pan , as contrasted with the fragmentation
of the operation which would occur should mem-
bers of the Sheet Metal Workers be assigned the
work , demonstrates that the existing assignment by
Construction Services to its carpenters should not
be disturbed . We shall, accordingly , determine the
existing jurisdictional dispute by assigning to car-
penters employed by Construction Services , rather
than to employees represented by the Sheet Metal
Workers, the work in dispute.
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. Carpenters employed by Pinkston-Hollar Con-
struction Services of Omaha , Inc., are entitled to
perform the disputed work of installing metal pan
ceilings.
2. Sheet Metal Workers' International Associa-
tion (AFL-CIO), Local No. 541, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the
Act, to force or require Pinkston -Hollar Construc-
tion Services of Omaha, Inc., to assign any such
disputed work within the area of its geographical
jurisdiction to employees represented by them
rather than to carpenters employed by Pinkston-
Hollar Construction Services of Omaha, Inc.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Wor-
kers' International Association (AFL-CIO), Local
Plasterers ' and Cement Masons' International Association of the United
States and Canada, AFL-CIO (Tabasco Prestressed Concrete Compans ), 163
NLRB 609
International Union of Operating Engineers , Local 66, AFL-CIO (Frank
P Badolat, & Son), 135 NLRB 1392, 1401, Local 157, United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO (Mtdn est Homes, Inc ), 160 NLRB
261
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 541, shall notify the Regional Director for Re- work in dispute to employees represented by Sheet
gion 17, in writing, whether it will or will not Metal Workers rather than carpenters employed by
refrain from forcing or requiring Pinkston -Hollar Pinkston-Hollar Construction Services of Omaha,
Construction Services of Omaha , Inc., by means Inc.
proscribed by Section 8(b)(4)(D), to assign the