277 N.L.R.B. 507 (N.L.R.B. 1985)

Tri-State Building And Construction Trades Council

National Labor Relations Board - Board DecisionsNov 18, 1985

277 N.L.R.B. 507 (N.L.R.B. 1985)

TRI-STATE BUILDING TRADES COUNCIL (BACKMAN SHEET METAL) Tri-State Building and Construction Trades Council and Sheet Metal Workers Local Union , 98, Sheet Metal Workers International Association, AFL-CIO International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers Local 105 , AFL-CIO and Sheet Metal Workers Local Union 98, Sheet Metal Workers Interna- tional Association , AFL-CIO United Brotherhood of Carpenters & Joiners of America, Millwright Local 1519 and Sheet Metal Workers Local Union 98, Sheet Metal Workers International Association , AFL-CIO International Association of Bridge Structural & Or- namental Iron Workers, Local 769, AFL-CIO and Sheet Metal Workers Local Union 98, Sheet Metal Workers International Association, AFL-CIO Tri-State Building and Construction Trades Council and Backman Sheet Metal Works, Inc. International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths, Forgers & Helpers Local 105, AFL-CIO and Backman Sheet Metal Works, Inc. United Brotherhood of Carpenters & Joiners of America, Millwright Local 1519 and Backman Sheet Metal Works, Inc. International Association of Bridge Structural & Or- namental Iron Workers , Local 769, AFL-CIO and Backman Sheet Metal Works, Inc. Cases 9-CD-406-1, 9-CD-406-2, 9-CD-406-3, 9- CD-406-4, 9-CD-407-1, 9-CD-407-2, 9-CD- 407-3, and 9-CD-407-4 18 November 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON The charges in this Section 10(k) proceeding were filed 21 May 19821 by Sheet Metal Workers Local Union 98, Sheet Metal Workers International Association, AFL-CIO (Sheet Metal Workers) in Cases 9-CD-406-1, -2, -3, and -4, and by the Em- ployer in Cases 9-CD-407-1, -2, -3, and -4. Both charges allege that the Respondents, Tri-State Building and Construction Trades Council (Tri- State Council), International Brotherhood of Boil- ermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local 105, AFL-CIO (Boilermakers), United Brotherhood of Carpenters and Joiners of America, Millwright Local 1519 (Millwrights), and International Association of Bridge, Structural and 1 All dates are 1982 unless otherwise specified. 507 Ornamental Iron Workers, Local 769, AFL-CIO (Iron Workers), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees they represent rather than to employees represented by the Sheet Metal Workers. The hearing was held 29 and 30 July and 19 August before Hearing Officer Deborah R. Grayson. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Company, an Iowa corporation, is engaged as a sheet metal contractor in the building and con- struction industry at its main office in West Des Moines, Iowa, and in various other States of the United States, including Ohio. It annually performs services valued in excess of $50,000 in States other than Iowa . The parties stipulate , and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and-.(7) of the Act and that the Sheet Metal Workers, Tri-State Council, Boil- ermakers, Millwrights, and Iron Workers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute2 The Pritchard Corporation (Pritchard) is the general contractor for the South Point Ethanol Project in South Point, Ohio, where Ashland Oil Company is constructing an anhydrous ethanol plant . The facility will be utilized to convert grain, primarily corn, into mash, ferment the mash, and ultimately distill it into ethanol and related distil- lates . Pritchard hired several subcontractors to per- form various aspects of the work. Among the sub- contractors hired was Continental Screw Conveyor Corporation of St. Joseph, Missouri (Continental). Continental was awarded a subcontract to fur- nish and install, among other things, a dust collect- ing system and spouting . Continental subcontracted this work to the Employer. As a subcontractor of Pritchard, the Employer was required to sign the 2 The parties stipulated that the record in Tri-State Building Trades Council (Backman Sheet Metal), 272 NLRB 8 (1984), be made a part of the record in the instant case. 277 NLRB No. 52 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Project Agreement.3 The Employer did not sign the Project Agreement until 25 May. . The Employer appeared at the jobsite on 28 April. At a prejob conference in Ashland, Ken- tucky, on 7 May, the Employer's vice president, Donald Mickey Swim, outlined the scope of the Employer's work, indicating that the work involv- ing the erection of dust collectors and ducting, in- cluding interconnecting spouts, would be per- formed by members of the Sheet Metal Workers. Among those in attendance at the meeting were representatives of Tri-State Council, and the repre- sentatives of the Boilermakers, Millwrights, Iron Workers, and Sheet Metal Workers. The Boiler- makers claimed the work of installing the dust col- lectors, the Iron Workers claimed the work of in- stalling the structural support steel for the dust col- lectors and chutes, and the Millwrights claimed the work of installing the interconnecting chutes be- tween machinery set by the Millwrights. Swim, however, reiterated his earlier assignment of the dust collector and spouting work to the Sheet Metal Workers. During this meeting, Douglas Blankenship, the representative of the Tri-State Council, which rep- resented all of the crafts, informed the Employer that he was going to recommend that the Employ- er be removed from the project because of the above work assignments, which he claimed were in violation of the project agreement.` On' 10, 11, and- 12 May, members of the Sheet Metal Workers em- ployed by the Employer unloaded materials on the jobsite. At Pritchard's request, the Employer ceased work on 12 May. A second prejob conference was held on 17 May, at which all of the various craft unions in- volved here were present. At that meeting Iron Workers Representative Ellis Harmon stated that if members of the Sheet Metal Workers installed even one piece of structural steel there would be no ironworkers on the project the next morning. (Harmon denied making any threats.) During the next 2 days employees represented by the Boiler- makers, Iron Workers, and Millwrights left the job- site and engaged in a work stoppage. After early morning discussions between Pritchard and an Iron Workers representative on 19 May, the employees went back to work. Later that morning Pritchard notified the Employer that it was to leave the job- site, assertedly for failure to sign the letter of assent required by the project agreement. 3 This was a collective-bargaining agreement between Pritchard and the Tri-State Building Trades Council and its affiliated local union cover- ing the wages , hours, and terms and conditions of employment of em- ployees employed by Pritchard or Pritchard's subcontractors on the South Point project The Employer signed the project agreement on 25 May: On 9 June the Employer informed the Boilermakers that it had signed the project agree- ment and invited them to attend another prejob conference. On 15 June a third prejob conference was held during which the Employer received the claims of the other crafts with regard to the work in dispute. However, the Employer made formal assignment of the dust collector and spouting work to employ- ees represented by the Sheet Metal Workers as a matter of record. The next day the Employer's em- ployees reported to work but members of other in- volved craft unions prevented them from working by sitting on the equipment needed by the Sheet Metal Workers. Ultimately, the Employer's em- ployees left the jobsite. On 17 June the Employer was notified by Conti- nental that its portion of the subcontract to install the dust collecting system had been postponed. Later that month, the Employer was notified by Continental that the dust collecting system part of the contract had been canceled. B. Work in Dispute The work in dispute involves all the field work related to the installation of dust collectors and spouting , including all chutes and supporting struc- tural steel , at the South Point Ethanol Project. C. Contentions of the Parties The Employer and the Sheet Metal Workers contend that the work in dispute in its entirety should be assigned to employees represented by the Sheet Metal Workers on the basis of labor agree- ments, company past practice, industry past prac- tice, relative skills , and efficiency and economy of operation. The Boilermakers argues that in the event the Board finds reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated , the work in dis- pute (excluding structural support steel work claimed by the Iron Workers and that work claimed by the Millwrights) should be awarded to a composite crew of employees represented by the Boilermakers and the Sheet Metal Workers on an equal basis . The Boilermakers bases its claim on the following factors: an interunion contractual agree- ment, trade practice in the geographic area , and ef- ficiency and economy of operations. The Millwrights argues that it is entitled to, per- form that portion of the work dealing with inter- connecting chutes between machinery to machin- ery, machinery to conveyors , and conveyor to con- veyor. It makes this claim on the basis of skill, TRI-STATE BUILDING TRADES COUNCIL (BACKMAN SHEET METAL) economy and efficiency of operation, area practice, and trade practice. The Iron Workers claims only the portion of the work in dispute dealing with the unloading and erection of structural supporting steel in connection with the `installation of the dust collectors. The Iron Workers relies on an informal agreement be- tween the Unions, area practice, skills, and econo- my and efficiency of operations. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) that the parties have not agreed upon a method for the voluntary adjustment of the dispute. Only the Boilermakers disputes that there is rea- sonable cause to believe that Section 8(b)(4XD) of the Act has been violated. It contends that there is no evidence that the Boilermakers or its agents at any time authorized, encouraged, or induced any work stoppage, refusal to handle goods, or refusal to perform services in order to force Pritchard, Continental, or the Employer to assign work to members of the Boilermakers rather than to mem- bers of the Sheet Metal Workers. However, the record establishes that the business manager of Tri-State Council, which represented all the Unions involved herein, on 7 May threat- ened to have the Employer removed from the South Point project if the Employer continued to assign the disputed work to employees represented by the Sheet Metal Workers, and that on 17 May, Harmon, the business representative of the Iron Workers, threatened to pull the ironworkers off the job if sheet metal workers installed any structural steel . In addition, on 18 and 19 May members of all three Respondent Unions in the presence of stew- ards from each Union engaged in a work stoppage causing cessation of construction at the entire project. On these grounds, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred with re- spect to the Boilermakers as well as the other Re- spondents. 4 With respect to (2) above, it is clear that the Board will not determine the merits of a jurisdic- tional dispute if the parties involved have an 4 In Tri-State Building Trades Council (Backman Sheet and Metal), supra fn . 2, the Board found that Tri-State violated Sec . 8(b)(4)(i)(ii)(B) of the Act by engaging in the above-discussed 7 May conduct; that the Iron Workers violated the same section of the Act by Harmon's conduct on 17 May ; and that all three of the Respondent Unions violated Sec. 8(b)(4)(ii)(B) of the Act by engaging in a work stoppage on 18 and 19 May. 509 agreed-upon method of resolving such disputes. All the parties involved were signatory to the project agreement, which provides, inter alia, that the rules and regulations of the Impartial Jurisdictional Dis- putes Board (IJDB) shall apply and the procedures of the IJDB shall be followed when jurisdictional disputes cannot be resolved by business agents on the job. However, during the period 1 June 1981 through 1 June 1984 the IJDB was inoperative, had ceased hearing jurisdictional disputes, and was incapable of administering or policing a determina- tion of such disputes.5 Since the IJDB was inoper- ative in 1982, when the events giving rise to this dispute occurred, we find that there is no agreed- upon method for the resolution of the dispute, to which all parties are bound. In light of the above, we conclude that there is reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements There are no orders or certifications of the Board awarding the work in dispute to employees represented by any of the Unions involved in the present proceeding. However, as seen, all parties 5 Plasterers Local 394 (Arok Construction Co), 268 NLRB 253, 255 (1983); Sprinkler Fitters Local 703 (Airco Carbon), 261 NLRB 1122, 1124 (1984) Furthermore, we do not find that the IJDB determined the instant dispute in its 10 August 1982 letter to Pritchard, Continental, and the in- stant parties, in which the IJDB (1) recounted the chronology of events involved in the instant dispute, (2) cited the IJDB rule which holds that a contractor's initial assignment of work (such as the Employer's assign- ment of the work in dispute to employees represented by the Sheet Metal Workers) survives a subsequent change of contractor (as occurred in this case after Continental's cancellation of the Employer's contract), and (3) directed the Employer's successor contractor to proceed in accordance with the Employer's earlier assignment of the work in dispute to mem- bers of the Sheet Metal Workers 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in this dispute are signatory to the project agreement, which provides, inter alia, in article X that: The Contractor (or Subcontractor) who has the responsibility for the performance and in- stallation shall make a specific assignment of the work in accordance with agreements or decisions of record. The Employer has a collective-bargaining agree- ment with Sheet Metal Workers Local 45 (not a party to this proceeding) covering certain counties in Iowa. That agreement provides, inter alia, that the Employer will use members of other Sheet Metal Workers local when it does business outside the geographical district covered by its agreement with Local 45, and abide by the labor agreement of any local union in whose territory it works. The Sheet Metal Workers International Union has an agreement with the Boilermakers Interna- tional Union which provides, inter alia, that "duct work and associated equipment in connection with recovery systems in chemical plants [and] . . . in other industrial plants" shall be performed by a composite crew composed equally of sheet metal workers and boilermakers. Here, the Employer assigned the work in dispute entirely to the Sheet Metal Workers-represented employees, which it contends it was required to do by the terms of its collective-bargaining agreement with Sheet Metal Workers Local 45. The Boilermakers asserts that since the project agreement requires the Employer to assign the dis- puted work according to "agreements or decisions of record," the current agreement between the Boilermakers and the Sheet Metal Workers should control the instant dispute, and a composite crew of Sheet Metal Workers-represented employees and Boilermakers-represented employees should be as- signed to perform that aspect of the work in dis- pute claimed by the Boilermakers.6 Although the agreement between the Sheet Metal Workers and the Boilermakers might appear to be a factor favoring award of the work of in- stalling the dust collectors and spouting to a com- 6 The Sheet Metal Workers notes that food processing, specifically the production of cornmeal, is excluded from the Boilermakers' jurisdiction by the agreement between the Sheet Metal Workers and Boilermakers It contends that agreement, therefore, does not apply to the work here be- cause the process used in the instant ethanol plant involves the making of cornmeal The Boilermakers argues that the food processing, cornmeal exclusions of the agreement apply only in the processing of materials for human or animal consumption It contends that the cornmeal produced here is used only in connection with industrial chemical manufacturing and therefore does not fall within the category of food processing We agree with the Boilermakers on this aspect of the prima facie applicability of the above contract provisions The dust collectors at issue here clearly serve the purpose of producing ethanol The grinding of corn is simply one means to that end polite crew of employees represented in equal parts by the Sheet Metal Workers and the Boilermakers, we note that those two Unions have themselves failed to agree to abide by it,7 the Employer has obviously not agreed to abide by it in the instant case,8 and has apparently not abided by it in the past,9 and, furthermore, the agreement at most ap- plies only to a part of the work in dispute.' ° Con- sequently, we do not accord great weight to this interunion agreement. Balanced against this agreement is the aforemen- tioned collective-bargaining agreement between the Employer and Sheet Metal Workers Local 45, ap- plicable by extension to the instant circumstances. Considering all the circumstances, we find, on bal- ance, that the factor of collective-bargaining agree- ments and other agreements favors an award of the work in dispute to the employees represented by the Sheet Metal Workers. 2. Joint Board determination As noted above, on 10 August, subsequent to Continental's cancellation of the Employer's sub- contract the IJDB, in a letter responding to a re- quest by the Sheet Metal Workers, instructed the parties to proceed with the work in dispute on the basis of the Employer's original assignment (i.e., to employees represented by the Sheet Metal Work- ers). The Iron Workers and the Boilermakers took no position with respect to the IJDB letter. As noted earlier, the 10 August notification from the IJDB is not a decision on the merits, but merely an instruction for the contractor to proceed with the original assignment since it is a violation of the procedural rules of the IJDB for a contractor to change an assignment unless there is an agreement between the unions involved or a directive from the IJDB. Accordingly, the IJDB letter is accord- ed no weight in our determination of this jurisdic- tional work dispute. 3. Company preference and past practice The record establishes that, during the past 20 years, the Employer has assigned the work in dis- pute to employees represented by the Sheet Metal Workers. Each of the Respondent Unions asserts that the Employer's past practice should not be en- titled to any weight because the Employer is no longer employed by the general contractor. Drdi- 7 See Operative Plasterers Local 394 (Warner Masonry), 220 NLRB 1074 (1975); Bricklayers Local I (St. Louis Home Insulators), 209 NLRB 1072, 1077 (1974). 8 See Bricklayers Local 1, supra, 209 NLRB at 1077; Iron Workers Local 361 (Concrete Casting Corp.), 209 NLRB 112, 115 (1974). 9 See Operating Engineers Local 150 (Components, Inc.), 197 NLRB 569, 572 (1972). i° See Iron Workers Local 361, supra, 209 NLRB at 115 TRI-STATE BUILDING TRADES COUNCIL (BACKMAN SHEET METAL) narily, the past practice of the Employer is a factor for consideration in the determination of a work dispute. Here, we see no reason to deviate from that reasoning simply because the Employer is no longer employed by the general contractor. The fact still remains that at the time of the instant dis- pute the Employer had been contracted to perform the work and made its assignment in conformity with its past practice. This factor, therefore, favors an award to employees represented by members of the Sheet Metal Workers. Concerning Employer preference, the Employer made clear at each job conference that it preferred that the work be performed by members of the Sheet Metal Workers. Thus this factor favors an award to employees represented by the Sheet Metal Workers. 4. Area and industry practice The record establishes that there is no uniform practice within the industry for assignment of any part of the disputed work. For example, the prac- tice has been to make assignments of the disputed duct work on the basis of whether the employer in- volved was bound to collective-bargaining agree- ments with either the Boilermakers or the Sheet Metal Workers. As a result, such work was as- signed in some instances to the Boilermakers, some- times to the Sheet Metal Workers, and even on some occasions to a composite crew. Similarly, with respect to the disputed work of erecting support steel and installation of chutes, the record reveals a wide variation in the practice of assigning that work. In some instances this work was assigned to employees represented by the Iron Workers, in other instances to employees represent- ed by the Millwrights, and in this instance, to the Sheet Metal Workers. In view of the great variations in industry prac- tice with respect to the different work components involved in this dispute., we conclude that this factor does not favor an assignment to any particu- lar group of employees. 5. Relative skills As noted above, the disputed work involves the installation of a dust collection system including erection of supporting steel and installation of con- necting chutes. The record fully establishes that both the Sheet Metal Workers-represented employ- ees and the Boilermakers-represented employees possess the requisite skills necessary to install and erect the complete systems. Indeed, both crafts re- ceive similar training and use similar tools. Because both the Sheet Metal Workers-repre- sented employees and the Boilermakers-represented 511 employees have the requisite job skills to perform the disputed work concerning the, dust collectors, this factor does not favor an award of the disputed work to employees represented by either Union. With respect to the disputed support steel work, the evidence suggest that the Sheet Metal Workers- represented employees and the Iron Workers-repre- sented employees are equally qualified to perform the work. Thus, this factor favors neither group. With respect to the disputed attachment of chutes, the record reveals that the employees rep- resented by Millwrights do not possess the shop ex- perience or shop fabrication ability that would enable them to install the chutes as quickly and ef- ficiently as employees represented by the Sheet Metal Workers. Accordingly, this factor weighs against an award of the work in dispute to employ- ees represented by the Millwrights. 6. Economy and efficiency of operations The Employer contends that the factors of effi- ciency and economy favor its assignment to em- ployees represented by the Sheet Metal Workers. In its view, by having the same individuals perform the work from start to finish, the Employer obtains maximum productivity from its employees. Each of the Respondent Unions except the Boilermakers, however, claims it is more efficient to utilize its members for the portion of disputed work they seek. The Boilermakers asserts that employees rep- resented by it and the Sheet Metal Workers, re- spectively are equally capable of efficiently per- forming the dust collecting work and that this factor favors neither group. The Sheet Metal Workers argues that the factor of efficiency favors employees represented by it because they can per- form all aspects of the disputed work. The Em- ployer reiterates the Sheet Metal Workers' argu- ment on this point. We find that assignment of the entire work in dispute to employees represented by the Sheet Metal Workers, whose qualifications and capabili- ties for performance of all related tasks are estab- lished by the evidence, is more economical and ef- ficient than segmenting performance of the work in dispute among groups of employees represented by the Sheet Metal Workers, Boilermakers, Mill- wrights, and Iron Workers. Employees represented by the Sheet Metal Workers are capable of doing all the work and the Employer can obtain maxi- mum efficiency by not having to change crews for each portion of the job. Accordingly, we find that the factors of economy and efficiency of operations favor award of the work in dispute to employees represented by the Sheet Metal Workers. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion After considering all the relevant factors, we conclude that employees represented by the Sheet Metal Workers are entitled to perform the work in dispute. We reach this conclusion relying on the collective-bargaining agreement between the Em- ployer and Sheet Metal Workers Local 45; the Em- ployer's past practice and preference; economy and efficiency of operations; and relative skills vis-a-vis the Millwrights. In making this determination, we award the work to employees who are represented by the Sheet Metal Workers, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of the Employer represented by the Sheet Metal Workers are entitled to perform all field work related to the installation of dust collec- tors and spouting, including all chutes and support- ing structural steel at the South Point Ethanol Project in South Point, Ohio. 2. Tri-State Building and Construction Trades Council; International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local 105, AFL-CIO; United Brother- hood of Carpenters and Joiners of America, Mill- wright Local 1519; and International Association of Bridge, Structural and Ornamental Iron Work- ers, Local 769, AFL-CIO, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the dis- puted work to employees represented by them. 3. Within 10 days from this date, the labor orga- nizations specified in paragraph 2 above shall notify the Regional Director for Region 9, in writ- ing whether they will refrain from forcing or re- quiring the Employer, by means proscribed by Sec- tion 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with this determina- tion.