Sheet Metal Workers Local 28 (Hausman Engineering)

National Labor Relations Board - Board Decisions

Apr 10, 1995

316 N.L.R.B. 1149 (N.L.R.B. 1995)

1149
316 NLRB No. 176
SHEET METAL WORKERS LOCAL 28 (HAUSMAN ENGINEERING)
1 All dates are in 1994 unless otherwise indicated.
Sheet Metal Workers’ International Association,
Local 28, AFL–CIO and Hausman Engineering
and International Union of Operating Engi-
neers, Local 295, AFL–CIO and The Shore-
stein Company. Case 2–CD–882
April 10, 1995
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
The charge in this Section 10(k) proceeding was
filed on May 16, 1994, by Hausman Engineering alleg-
ing that the Respondent, Sheet Metal Workers’ Inter-
national Association, Local 28, AFL–CIO (Sheet Metal
Workers Local 28), violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing The
Shorestein Company to assign certain work to employ-
ees it represents rather than to employees represented
by International Union of Operating Engineers, Local
295, AFL–CIO (Operating Engineers Local 295). A
hearing was held on June 14, 1994, before Hearing Of-
ficer Geoffrey Dunham. Thereafter, Hausman and
Sheet Metal Workers Local 28 each filed posthearing
briefs.
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
record, the Board makes the following findings.
I. JURISDICTION
The Charging Party, Hausman Engineering, a New
York proprietorship with a place of business at 2 Penn
Plaza, Suite 1500, New York, New York, is engaged
in the replacement, maintenance, and repair of control
dampers for air conditioning units. Annually, in the
course and conduct of its business, Hausman receives
gross revenues in excess of $500,000 and purchases
and receives goods, products, and supplies valued in
excess of $50,000 from points located outside the State
of New York.
The Shorestein Company, a proprietorship with an
office and place of business at 200 Park Avenue, New
York, New York, provides management services to
owners of commercial buildings. Annually, in the
course and conduct of its business, Shorestein receives
gross revenues in excess of $500,000 and purchases
and receives goods, materials, and services valued in
excess of $50,000 from points outside the State of
New York.
We find that Hausman and Shorestein are engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act. Additionally, the parties stipulated and
we find that Sheet Metal Workers Local 28 and Oper-
ating Engineers Local 295 are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Shorestein is the general contractor for the removal
and replacement of approximately 268 control
dampers, which control air flow from air conditioning
fans, at 200 Park Avenue in New York City. In April
1994, Shorestein solicited bids for the work and re-
ceived bids from four contractors, including Hausman.1
All the contractors except Hausman have collective-
bargaining agreements with Sheet Metal Workers
Local 28. Hausman has a collective-bargaining agree-
ment with Operating Engineers Local 295.
In May, after Shorestein received the bids,
Andrucki, a business agent for Sheet Metal Workers
Local 28, told Shorestein representatives Patrick and
Cotilla that the damper replacement work at 200 Park
Avenue was within Local 28’s jurisdiction, and that if
Shorestein assigned the work to Operating Engineers
Local 295, Local 28 would engage in informational
picketing in front of the building.
As of the time of the hearing, Shorestein had not as-
signed the work and Local 28 had not picketed.
Gorndt, Shorestein’s building manager at 200 Park Av-
enue, appeared for Shorestein at the hearing and stated
that because of the dispute, Shorestein decided ‘‘[to]
purchase the materials directly and . . . have [the
dampers] installed by in house staff.’’ In this regard,
Patrick, Shorestein’s chief engineer, testified that in the
past Shorestein has performed damper repair work in-
house with employees who are represented by Operat-
ing Engineers Local 94, which is not a party to this
proceeding. According to Patrick, Shorestein has had a
bargaining relationship with Local 94 for about 5
years. When questioned by the hearing officer as to
whether Shorestein has collective-bargaining agree-
ments with any other unions, Patrick cited Cleaning
Personnel Local 32B, Plumbers Local 2, and Electrical
Workers Local 3, but did not include either of the
Unions that are parties here.
B. Work in Dispute
The disputed work is the removal and installation of
control dampers at 200 Park Avenue in New York
City.
C. Contentions of the Parties
Hausman contends that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated be-
cause Sheet Metal Workers Local 28 ‘‘claims the work
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Carpenters Local 1207 (Carlton, Inc.), 313 NLRB 71, 72 fn. 6
(1993); Bricklayers Local 5 (Oscar J. Boldt Construction), 312
NLRB 833, 834 (1993).
3 We note that any future subcontracting of the work by Shorestein
is not only speculative but is unlikely in view of Shorestein’s stated
intent to perform the work in-house.
4 Compare Communications Workers Local 915 (Newsday), 306
NLRB 874, 876–877 (1992) (where employer assigned the work to
an unstaffed area of operation rather than to a specific group of em-
ployees, the Board found that the absence of the actual selection of
employees to be assigned the work meant that a ‘‘fundamental pre-
requisite for a jurisdictional dispute‘‘—competing claims for the
work—was lacking).
5 Printing & Paper Trades Workers Local 520, 168 NLRB 531,
532 (1967) (Board declined to determine possible disputes over fu-
ture work assignments as, inter alia, no charge had been filed relat-
ing to such future work).
We note that although there is no indication that the damper re-
placement work has begun, the Board has recognized that when an
employer has made a formal and specific assignment of work to a
defined group of employees, the fact that the work has not yet com-
menced does not constitute a bar to finding a genuine jurisdictional
dispute where it is otherwise supported by reasonable cause. See Op-
erating Engineers Local 3 (Schnitzer Steel), 303 NLRB 13, 14 fn.
5 (1991); Teamsters Local 216 (Granite Rock Co.), 296 NLRB 250,
250 fn. 4 (1989), enfd. mem. 940 F.2d 667 (9th Cir. 1991).
Because we find that no competing claims exist for the work at
issue here, we do not reach the other arguments raised by the parties.
6 See Printing & Paper Trades Workers Local 520, supra, 168
NLRB at 532.
that Hausman has assigned to Local 295.’’ Hausman
maintains that for the past 5 years it has used employ-
ees who are represented by Operating Engineers Local
295 to perform control damper replacement work and
is satisfied with their performance. Hausman further
contends that the control damper replacement work at
200 Park Avenue should be awarded to employees rep-
resented by Operating Engineers Local 295 based on
Hausman’s collective-bargaining agreement with Local
295 and its preference and past practice, as well as on
the following factors: area and industry practice, rel-
ative skills, and economy and efficiency of operations.
Shorestein expressed no interest as to whether the
control damper replacement work should be assigned
to employees who are represented by Operating Engi-
neers Local 295 or Sheet Metal Workers Local 28 and,
as indicated above, stated its intention to perform the
work in-house.
Operating Engineers Local 295 contends that the
control damper replacement work is within its jurisdic-
tion pursuant to its collective-bargaining agreement
with Hausman Engineering.
Sheet Metal Workers Local 28 contends that by vir-
tue of its constitution and contracts with multiemployer
associations, employees represented by it have tradi-
tionally fabricated, installed, and renovated dampers in
all areas within its territorial jurisdiction, and that its
members in fact fabricated and installed the heating
and air conditioning system at 200 Park Avenue. Al-
though recognizing that Shorestein has not assigned
the disputed work, Local 28 contends that the work
should be awarded to employees it represents based
particularly on area and industry practice, economy
and efficiency, and the high level of skills possessed
by Local 28 members.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k), it must be satis-
fied that reasonable cause exists to believe that Section
8(b)(4)(D) has been violated and that the parties have
not agreed on a method for the voluntary settlement of
the dispute. We are not satisfied that reasonable cause
exists to believe that a violation has occurred in this
case.
When a general contractor has assigned disputed
work to a subcontractor, the subcontractor becomes the
‘‘employer’’ for purposes of analyzing those factors
relevant to a determination of a work jurisdiction dis-
pute.2 It is undisputed that Shorestein has not subcon-
tracted the disputed work to any of the contractors
which submitted bids. In particular, Shorestein has not
subcontracted the work to Charging Party Hausman;
therefore, Hausman is not the ‘‘employer’’ responsible
for selecting the employees to perform the work.3 For
this reason, we reject Hausman’s contention that it has
already assigned the Park Avenue damper replacement
work to employees represented by Operating Engineers
Local 295, and we find that Hausman’s contentions re-
garding its collective-bargaining agreement with Oper-
ating Engineers Local 295 and its preference and past
practice are premature.4
Shorestein has expressed an intent to perform the
disputed work in-house. There is no indication that
Shorestein has collective-bargaining agreements with
or employs any employees represented by the Unions
that are parties to this proceeding. Thus, we further
find that to the extent that Shorestein is the ‘‘em-
ployer’’ and has selected its own employees to replace
the dampers, any competing claims for the work would
involve the nonparty Unions that represent Shorestein’s
employees, which dispute is not the subject of the
charge in this case alleging conduct that violates Sec-
tion 8(b)(4)(D).5
Under these circumstances, we find no basis for
finding a prima facie case for a violation of Section
8(b)(4)(D).6 Absent a finding of reasonable cause to
believe that Section 8(b)(4)(D) has been violated, this
matter is not a jurisdictional dispute subject to resolu-
tion under Section 10(k). Accordingly, we shall quash
the notice of hearing.
ORDER
It is ordered that the notice of hearing in Case 2–
CD–882 is quashed.