Sheet Metal Workers, Local No. 2

National Labor Relations Board - Board Decisions

Mar 1, 1973

202 N.L.R.B. 55 (N.L.R.B. 1973)

SHEET METAL WORKERS , LOCAL NO. 2 55
Sheet Metal Workers Local Union No. 2 and Bazil
Hall d/b/a Hall Refrigeration Sales and Service
and Operating Engineers , Local No. 6-6A-6B.
Case 17-CD-165
March 1, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
purposes of this proceeding, we find that Hall is
engaged in interstate 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 ORGANIZATION INVOLVED
The Parties stipulated, and we find, that the Sheet
Metal Workers and the Operating Engineers are
labor organizations within the meaning of Section
2(5) of the Act.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Bazil Hall d/b/a Hall Refrigera-
tion Sales and Service, herein called Hall, on
November 13, 1972, alleging that Sheet Metal
Workers Local Union No. 2, herein called Sheet
Metal Workers, had violated Section 8(b)(4)(D) of
the Act by threatening, coercing, and restraining
Hall with an object of forcing Hall to assign certain
work to employees represented by the Sheet Metal
Workers rather than to employees represented by
Operating Engineers, Local No. 6-6A-6B, herein
called Operating Engineers.
Pursuant to notice, a hearing was held before
Hearing Officer John P. Hurley on December 4,
1972. The Sheet Metal Workers, Hall, and the
Operating Engineers 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. No briefs have been
filed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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. The Board has considered the entire
record in this proceeding and makes the following
findings:
1. THE BUSINESS OF THE COMPANY
Hall is a sole proprietorship engaged in the
building and construction industry as an air-condi-
tioning and refrigeration contractor operating from a
facility located at 7420 Prospect, Kansas City,
Missouri. In the course and conduct of his business,
Hall annually purchases materials valued in excess of
$50,000 directly from sources outside the State of
Missouri, and he annually performs services or sells
goods valued in excess of $50,000 directly to
customers located outside the State of Missouri. In
accord with the stipulation of the parties for the
202 NLRB No. 28
III. THE DISPUTE
A. Background
Hall contracted with the Crown Center Hotel
project on June 15, 1972, to perform the work of
installing 20 walk-in freezers and coolers and the
refrigeration' equipment therein. Hall commenced
working on the job in late October 1972 using his
employees who were represented by the Operating
Engineers.
About 10 o'clock on the morning of November 1,
1972, Hall received a phone call from George
Schmidt, a business representative of the Sheet Metal
Workers. Schmidt said that he believed the work
being performed by Hall's employees belonged to
members of the Sheet Metal Workers and he wanted
time to try and work out a solution to the problem.
He asked if Hall would take his employees off the job
for the day. Hall, as a personal favor to Schmidt,
whom he had known for 20 years, complied with the
request.
The following morning, November 2, 1972, Hall
sent his employees back to work at the Crown Center
project. Schmidt met in his office with George
Collins, business representative of the Operating
Engineers, that same morning in an attempt to
resolve the dispute. They telephoned Hall at approxi-
mately 10 a.m. Schmidt stated his demand that the
work be assigned to employees represented by the
Sheet Metal Workers, specifying that he was claim-
ing only the erection of the walk-in coolers and
freezers. Hall proposed that they settle the dispute by
using a composite crew on the erection work.
Schmidt replied that he could not agree unless a
composite crew would also be used on the work of
installing the refrigeration equipment and that Hall
would sign an agreement with the Sheet Metal
Workers. Hall refused. According to Hall, Schmidt
said he would close the job down, throw up a picket,
and see that Hall did not get any more work from the
kitchen equipment companies, with which Hall had
contracted for this type of work. Hall asked if this
was a threat, and Schmidt replied that it was not but
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Hall could take it any way he wanted to.
Schmidt denied making any threatening remarks to
Hall in this phone conversation . Collins could not
recall Schmidt making any remark about closing
down the job and picketing , but he did recall
Schmidt 's remark about the kitchen equipment
companies and Hall ' s asking if it was a threat.
Collins also testified that after the telephone conver-
sation Schmidt told him that the Sheet Metal
Workers would picket and close down the job.
On November 3, 1972, Hall was told by a Crown
Center representative to take his employees off the
job because the latter feared a strike at the project by
the Sheet Metal Workers if Hall continued working.
Hall withdrew from the job , but returned to work at
the project on November 27, 1972, and was continu-
ing to work there at the time of the hearing. There
was no picketing at the project in relation to this
dispute.
B. Work in Dispute
The disputed work consists of the erection of
prefabricated walk-in coolers and walk-in freezers at
the Crown Center Hotel project located at Main
Street and Pershing Road, Kansas City, Missouri.
The work in dispute does not include the installation
of refrigeration equipment . When Hall proposed
using a composite crew on the erection work,
Schmidt responded that he wanted a composite crew
on the refrigeration work as well. However, it is
apparent from the record that Schmidt, in effect, was
merely asserting his claim for all the erection work.
At the hearing the Sheet Metal Workers contended
that it did not claim the installation of the refrigera-
tion equipment in the coolers and freezers.
C. Contentions of the Parties
Although no briefs were filed, the Sheet Metal
Workers presented evidence at the hearing that its
members had erected virtually identical coolers and
freezers, that industry practice in the area has been to
use sheetmetal workers for this type of work, and
that sheetmetal workers possess special skills neces-
sary for correcting defects, modifying prefabricated
parts, and doing finishing work.
Hall presented evidence that it assigned the work in
accord with its collective-bargaining agreement with
the Operating Engineers, that the Operating Engi-
neers is the certified representative of its employees,
that the erection of coolers and freezers involves skill
possessed by its employees since erection of coolers
and freezers often involves simultaneous installation
i N L R B v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
of refrigeration equipment, and that the assignment
is consistent with its longstanding practice.
The Operating Engineers contentions appear to be
the same as Hall's.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 and
that there is no agreed-upon method for voluntary
adjustment of the dispute. As to the latter, the record
does not show the existence of any private means of
adjusting the dispute, and efforts between the
representatives of the two locals to resolve the
dispute were unsuccessful.
As indicated above, the Sheet Metal Workers
representative demanded that the work in dispute be
assigned to employees represented by the Sheet
Metal Workers rather than to Hall's employees, who
were represented by the Operating Engineers. Al-
though a mere demand for the reassignment of work
is not unlawful, it may become so if accompanied by
threats, picketing, work stoppages, or other coercion.
The record herein contains evidence that the Sheet
Metal Workers representative threatened to picket,
to close down the job, and to see that Hall would get
no more business from certain contractors. Accord-
ingly, and without ruling on the credibility of the
testimony in issue, we are satisfied that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
is properly before us for determination.
E. 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 various relevant factors.'
1. Collective-bargaining agreements
The Sheet Metal Workers introduced no collective-
bargaining agreements. However, it did introduce
into the record a copy of its constitution which
contains a trade jurisdiction clause purporting to
cover the type of work in dispute. On the other hand,
Hall, through membership in the Heating and
Cooling Contractors Association, is party to a
collective-bargaining agreement with the Operating
Engineers. The contract introduced into evidence
expired on June 1, 1972. Apparently, a new agree-
ment had been reached but not yet executed, and
Hall and other members of the Association had been
Broadcasting System]. 364 U S 573
SHEET METAL WORKERS , LOCAL NO. 2 57
applying the terms of the old contract since June 1,
1972, by an oral understanding with the Union. The
recognition clause of that contract reads in pertinent
part:
The Company recognizes the Union as the sole
collective bargaining agency for all its employees
engaged in new construction, repair and mainte-
nance of refrigeration . . . units or appli-
ances. . . .
On March 19, 1956, the Operating Engineers was
certified by the Board as the exclusive bargaining
representative of all service and installation engineers
employed by members of the Heating and Cooling
Contractors Association, of which Hall was then and
is now a member (Case 17-RC-2006). Since the
Operating Engineers is the certified representative of
Hall's employees and Hall, by virtue of its contract
with the Operating Engineers, has assigned the work
in dispute to its employees, we find that these factors
favor our awarding the work in question to engi-
neers.
2. Employer, area, and industry practice
Evidence introduced at the hearing concerning
area and industry practice is inconclusive as the
record indicates the use of employees represented by
both the Operating Engineers and Sheet Metal
Workers, as well as other crafts, to perform work
similar to that in dispute. Although there is evidence
that the erection of nonprefabricated metal coolers
has traditionally been performed by sheetmetal
workers, there is also evidence that Hall has been
using engineers to erect prefabricated coolers and
freezers for 20 years. Hall's assignment of the
disputed work is in accord with its longstanding
practice and favors awarding the work to engineers.
3. Skills and efficiency of operation
The record shows that significant skills are required
to erect prefabricated coolers and freezers. The Sheet
Metal Workers introduced evidence to show that its
apprenticeship program covered the erection of
prefabricated coolers and freezers and that special
skills possessed by its members were necessary.
Occasionally the prefabricated panels will be the
wrong size and need to be cut, changes will have to
be made to accomodate certain obstacles such as
beams, or modifications will have to be made for
special uses. Furthermore, sheetmetal workers can
perform finishing work, i.e., construction of metal
panels to fit from the top of a cooler to the ceiling of
the room.
Hall presented testimony that in some instances the
refrigeration system would have to be erected
simultaneously with a prefabricated box. Hall has
been in business for 20 years using operating
engineers and guarantees his work. In the event that
a panel is the incorrect size Hall orders a replacement
from the manufacturer. Hall's employees do not do
the finishing work, and if a contract includes it, Hall
subcontracts the work out.
Although relative skills appear to be a neutral
factor, certain facts show that efficiency of operation
favors awarding the work in dispute to employees
represented by the operating engineers. In this
regard, the contract for the work giving rise to the
dispute does not include finishing, and Hall, by using
his own employees, avoids fragmentizing the work
and achieves a greater efficiency of operation.
Conclusions
Upon the entire record, and after full consideration
of all relevant factors here involved, we believe that
employees represented by the Operating Engineers
are entitled to perform the work in dispute. This
award is supported especially by Hall's assignment of
the work to its employees represented by the
Operating Engineers, the fact that such assignment is
consistent with Hall's past practice and collective-
bargaining relationship, and the fact that the Operat-
ing Engineers is the certified bargaining agent for
Hall's employees. In addition, efficiency of operation
tends to favor such award. In making this award, we
are assigning the work to employees represented by
the Operating Engineers rather than to that organiza-
tion itself or its members. Our present determination
is limited to the particular dispute which gave rise to
this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees represented by Operating Engi-
neers, Local No. 6-6A-6B, are entitled to perform
the work of erecting prefabricated walk-in coolers
and freezers at the Crown Center Hotel project at
Main Street and Pershing Road, Kansas City,
Missouri.
2. Sheet Metal Workers Local Union No. 2 is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Bazil Hall d/b/a Hall
Refrigeration Sales and Service to assign the above
work to its members or employees whom it repre-
sents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 2 shall notify the Regional Director Section 8(b)(4)(D) of the Act , to assign the work in
for Region 17, in writing, whether it will refrain from dispute in a manner inconsistent with the above
forcing or requiring Bazil Hall d/b/a Hall Refrigera- determination.
tion Sales and Service, by means proscribed by