Sheet Metal Workers International Association, Local 88 (A W FARRELL & SON, INC.)

National Labor Relations Board - Board Decisions

Jan 30, 2014

360 N.L.R.B. 178 (N.L.R.B. 2014)

178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 34
Sheet Metal Workers International Association,
AFL–CIO, Local Union 88 and A. W. Farrell &
Son, Inc. and United Union of Roofers, Water-
proofers, and Allied Workers, Local 162. Case
28–CD–096857
January 30, 2014
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On January 23, 2013, A. W. Farrell & Son, Inc. (the
Employer) filed the charge in this 10(k) proceeding, al-
leging that the Respondent, Sheet Metal Workers Inter-
national Association, Local Union 88 (Sheet Metal
Workers Local 88 or Local 88), violated Section
8(b)(4)(D) of the National Labor Relations Act by engag-
ing in proscribed activity with an object of forcing the
Employer to assign certain work to employees represent-
ed by Sheet Metal Workers Local 88 rather than to em-
ployees represented by United Union of Roofers, Water-
proofers, and Allied Workers, Local 162 (Roofers Local
162 or Local 162). Hearing Officer Barbara Beaubrun
Baynes conducted a hearing on June 13, 2013. Thereaf-
ter, the Employer, Local 88, and Local 162 filed briefs in
support of their positions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer is a corpora-
tion with offices throughout the United States, including
an office and place of business in Las Vegas, Nevada.
They also stipulated that during the 12-month period
preceding the hearing, a representative period, the Em-
ployer performed services valued in excess of $50,000
outside the State of Nevada. The parties further stipulat-
ed, and we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act, and that Sheet Metal Workers Local 88 and Roofers
Local 162 are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer provides roofing services at various
sites in and around Las Vegas, Nevada. Specifically, the
Employer attaches metal, tar, dirt, or other material to the
top of a building to prevent moisture and sun damage,
and also constructs the underlayment for the roof.
The Employer and Roofers Local 162 have a collec-
tive-bargaining relationship embodied in a series of col-
lective-bargaining agreements, the most recent of which
was effective from September 1, 2010, through July 31,
2012.1 That agreement covered:
All regular full-time and part-time skilled roofer and
damp and waterproof workers, including apprentices,
pre-apprentices, allied workers, other classifications of
workers and any person performing the duties of all
safety monitoring of work, excluding managers, guards
and supervisors as defined in the Act.
The Employer also has a collective-bargaining rela-
tionship with Sheet Metal Workers Local 88. That rela-
tionship was embodied in three collective-bargaining
agreements: the Standard Form Agreement, the Moisture
Control Agreement, and the National Building Enclosure
Agreement. The Moisture Control Agreement was effec-
tive May 1, 2011, through April 30, 2013, and provided:
The Union shall have jurisdiction over all skilled roof-
ers and damp and waterproof workers, including ap-
prentices, pre-apprentices, allied workers, other classi-
fications of workers and any person performing the du-
ties of all safety monitoring of work performed [within
the state of Nevada]. The work jurisdiction of the Un-
ion shall be all roofing and waterproofing systems or
products whenever the primary function of such sys-
tems or products is to prevent the intrusion or migration
of moisture. These systems or products shall include
but not [sic] limited to all those outlined in this Article.
In April 2011, Roofers Local 162 represented the Em-
ployer’s six roofing employees. On April 28, 2011,
Sheet Metal Workers Local 88 faxed to Local 162 letters
from all six employees resigning their membership in
Local 162. Those employees subsequently joined Local
88 and continued to perform the Employer’s roofing
work.
In a letter to the Employer dated January 21, 2013, Lo-
cal 88’s Business Manager, Byron Harvey, expressed
pleasure that the Employer had assigned “all of its roof-
ing in Las Vegas” to Local 88’s members. The letter
stated, “Should the assignment of any of this work be
given to Roofers-represented workers, we would have no
recourse but to picket any jobs where such mis-
assignment occurs.”

1 In A. W. Farrell & Son, Inc., 359 NLRB 1463, 1464–1465 (2013),
the Board found that the Employer agreed to extend its collective-
bargaining agreement with Local 162 through July 31, 2012. The
Board also found, in the absence of exceptions, that the Employer es-
tablished a 9(a) relationship with Local 162. Id., 1463 fn. 1.
SHEET METAL WORKERS LOCAL 88 179
B. Work in Dispute
The work in dispute is all roofing work performed by
the Employer in and around Las Vegas, Nevada.
C. Contentions of the Parties
Roofers Local 162 contends that the notice of hearing
should be quashed. In support, it asserts that the present
controversy is not a jurisdictional dispute within the
meaning of Section 10(k) of the Act because neither it
nor Sheet Metal Workers Local 88 contends that the
work should be reassigned to a different group of em-
ployees. Instead, according to Local 162, the dispute is
over which union is the representative of the same group
of employees. Local 162 also contends that, if the Board
denies the motion to quash, the record does not provide
an adequate basis for comparing skills, efficiencies, or
other factors that the Board traditionally considers when
determining disputes under Section 10(k) of the Act.
The Employer, conversely, contends that a jurisdic-
tional dispute exists. The Employer asserts that it has
collective-bargaining relationships with two unions
claiming jurisdiction over the disputed work. The Em-
ployer contends that not all of its current employees were
former members of Roofers Local 162, and that even
those employees who were members of that union have
resigned their membership. The Employer also contends
that the Board should award the work in dispute to em-
ployees represented by Sheet Metal Workers Local 88 on
the basis of collective-bargaining agreements, employer
preference, area and industry practice, employer past
practice, economy and efficiency of operations, relative
skills and training, and previous Board and arbitral deci-
sions.
Local 88 also contends that a jurisdictional dispute ex-
ists because the Employer hired several employees out of
Local 88’s hiring hall and because those employees who
were formerly represented by Local 162 resigned from
that union and subsequently joined Local 88. Local 88
contends that the work in dispute should be awarded to
the employees it represents on the basis of collective-
bargaining agreements, employer past practice, area
practice, skills and training, and economy and efficiency
of operations.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that there are competing claims
to the disputed work among rival groups of employees,
and that a party has used proscribed means to enforce its
claim to the work in dispute. Additionally, there must be
a finding that the parties have not agreed on a method for
the voluntary adjustment of the dispute. See, e.g., Oper-
ating Engineers Local 150 (R&D Thiel), 345 NLRB
1137, 1139 (2005). On this record, we find that there is
no reasonable cause to believe that Section 8(b)(4)(D)
has been violated.
Although the Employer and Local 88 have framed the
issues in terms of a work assignment dispute, it is evident
that the dispute is not over the assignment of work to one
group of employees rather than to another group. Rather,
as asserted by Local 162, the dispute concerns which
union will represent the employees who are currently
performing the Employer’s roofing work. None of the
parties has raised any objection to the performance of the
roofing work by the Employer’s current employees. Lo-
cal 88 threatened to picket if the Employer assigned the
work to employees represented by Local 162. At the
hearing and in its brief to the Board, Local 162 stated
repeatedly that it does not seek reassignment of the work
in dispute to any other employees. Instead, it seeks only
to be recognized as the 9(a) representative of the em-
ployees currently performing the work in dispute. The
Employer also wants its current employees to continue
performing the work in dispute.
It is well established that a dispute within the meaning
of Section 8(b)(4)(D) requires a choice between two
competing groups. Carpenters Local 1307 (J & P Build-
ing Maintenance), 331 NLRB 245, 247 (2000); Food &
Commercial Workers Local 1222 (FedMart Stores), 262
NLRB 817, 819 (1982). In this regard, the Board has
stated:
“There must, in short, be either an attempt to take
a work assignment away from another group, or to
obtain the assignment rather than have it given to the
other group.
. . . .
“A demand for recognition as bargaining repre-
sentative for employees doing a particular job, or in
a particular department, does not to the slightest de-
gree connote a demand for the assignment of work
to particular employees rather than to others.”
Laborers Local 1 (DEL Construction), 285 NLRB
593, 595 (1987) (quoting FedMart Stores, 262 NLRB at
819).
We also reject the Employer’s and Local 88’s argu-
ment that a jurisdictional dispute exists because the Em-
ployer’s current employees are not the same group of
employees who were formerly represented by Local 162.
What matters is that all parties agree that the employees
currently performing the Employer’s roofing work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD180
should continue to perform that work. Finally, we reject
the argument that a jurisdictional dispute exists because
some of the employees resigned their memberships in
Local 162 and joined Local 88. The employees’ mem-
bership in one union or the other is irrelevant to a dispute
under Section 10(k), which deals with assignments of
work between two competing groups of employees. See
FedMart Stores, 262 NLRB at 818–819 (no dispute with-
in the meaning of Section 10(k) where some of the em-
ployees performing the work in dispute resigned from
one bargaining representative and joined another).
In light of the foregoing, we conclude that the dispute
here does not concern the assignment of work to one
group of employees rather than another within the mean-
ing of Section 8(b)(4)(D). Accordingly, as this matter is
not a jurisdictional dispute within the meaning of Section
10(k), we shall quash the notice of hearing.
ORDER
IT IS ORDERED that the notice of hearing issued in this
case is quashed.