Millwrights & Machine Erectors

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Millwrights and Machine Erectors Local No. 1906, United Brotherhood of Carpenters and Joiners and Modern Erection Service, Inc. and Sheet Metal Workers' International Association, Local Union 19. Case 4-CD-482 May 2, 1980 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Modern Erection Service, Inc., herein called the Employer, alleging that Mill- wrights and Machine Erectors Local No. 1906, United Brotherhood of Carpenters and Joiners, herein called Respondent or Millwrights, had vio- lated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forc- ing or requiring the Employer to assign certain work to its members rather than to employees rep- resented by Sheet Metal Workers' International As- sociation, Local Union 19, herein called Sheet Metal Workers or Local 19. Pursuant to notice, a hearing was held before Hearing Officer Henry R. Protas on November 9 and 20, 1979. All parties appeared and were afford- ed 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 au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Pennsylvania corporation with a facility located at 975A Bristol Pike, Andalusa, Pennsylva- nia, is engaged in the business of installing and erecting storage racks. During the past year, the Employer purchased goods and services from out- side the State of Pennsylvania having a value in excess of $50,000. The parties also stipulated, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 249 NLRB No. 25 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Mill- wrights and Sheet Metal Workers are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The disputed work involves the erection of an Eaton-Kenway automated miniload storage system at a General Motors parts warehouse in Bensalem, Pennsylvania. The erection of the system was sub- contracted to the Employer by Artco, Inc., which is in turn a subcontractor of Eaton-Kenway, the general contractor for the entire warehouse con- struction project. The Employer assigned the work to employees represented by Sheet Metal Workers. The miniload storage system involved here is characterized as shelving by the Employer and Sheet Metal Workers, and as racks by Millwrights. It consists of light-gauge metal frames with mecha- nisms for retrieving and storing tote pans in which parts are placed. The site manager for Eaton- Kenway testified that the system consists of shelv- ing because it utilizes tote pans for storage, where- as racks are made of heavy-gauge metal and utilize large pallets for storage. The Employer awarded the work in dispute to Sheet Metal Workers on the basis of a collective-bargaining contract which places the construction of metal shelving within its jurisdiction and on the basis of past practice and ef- ficiency. Millwrights claims the disputed work on the ground that it involves construction of light- gauge storage racks and is work traditionally done by millwrights. In early August 1979, the Millwrights business representative, Gary Moran, first told Joseph Gra- venstine, the business representative for Sheet Metal Workers, that Millwrights was claiming the work in dispute at Bensalem. Subsequently, Gra- venstine informed Moran that Sheet Metal Workers would not relinquish the work. Sometime during September, Moran presented Millwrights claim to the Employer's president, Francis McCaffery, who told Moran that he disagreed with Millwrights. Moran submitted the dispute to the Impartial Juris- dictional Disputes Board (IJDB) for resolution and, on September 28, the IJDB awarded the work to employees represented by Millwrights. Moran in- formed Daniel Shirk, the site manager for Eaton- Kenway, of the award on October 3. On October 4, Moran threatened Shirk and a representative of General Motors with a picket line if the work was not assigned to employees represented by Mill- wrights. In turn, representatives of Eaton-Kenway ----- MILLWRIGHTS AND MACHINE ERECTORS LOCAL No. 1906 235 and Artco ordered the Employer to stay off the job until the dispute was settled. As a result, the Employer did not work on the site between Octo- ber 8 and 21. It resumed work on October 22. B. The Work in Dispute The work in dispute involves the erection of an Eaton-Kenway automated miniload storage system at a General Motors parts warehouse in Bensalem, Pennsylvania. C. The Contentions of the Parties The Employer and Sheet Metal Workers Local 19 contend that the work in dispute should be awarded to employees represented by Local 19 on the basis of the collective-bargaining agreement be- tween the Employer and Local 19, employer pref- erence and past practice, and industry practice. The Employer also contends that efficiency favors an award to employees represented by Local 19. The Employer and Local 19 further contend that the September 1979 award of the IJDB obtained by Millwrights is not binding on the Employer. At the hearing, the Employer did not dispute Mill- wrights contention that Millwrights and Local 19 are bound by IJDB awards. The Employer also ac- knowledges that it was at one time bound to honor such awards by the terms of a Philadelphia area agreement to which it is signatory. However, the Employer argues that it was released from the rele- vant terms of this agreement, which was to have been effective until May 1981, by a specialty con- tractor's agreement executed by it and Local 19 on March 6, 1979. Local 19 does not admit that it or its International Union have ever agreed with Mill- wrights to be bound by IJDB awards. However, it also argues that the specialty agreement establishes that the Employer is not so bound. Millwrights asserts that the Philadelphia area agreement binds the Employer to honor IJDB awards and that the specialty agreement does not release the Employer from this obligation. It char- acterizes testimony of Francis McCaffery, the Em- ployer's president, as establishing that the specialty agreement was signed to avoid being bound by IJDB awards of work to Millwrights and argues that such abrogation of contractual obligations should not be deemed valid. Millwrights also as- serts that its members possess the necessary skills to perform the disputed work and that industry prac- tice favors the award of the work to employees it represents. 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 there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. The record establishes that Millwrights has con- tinuously asserted a claim to the work in dispute since August 1979. Millwrights does not dispute evidence that it threatened the Employer with picketing if the Employer did not honor its claim. Furthermore, at the hearing the parties stipulated that there is reasonable cause to believe Mill- wrights engaged in conduct which violated Section 8(b)(4)(D) of the Act. Accordingly, we find the first requirement for a Section 10(k) determination has been met. We also find that there is no agreed-upon method for voluntary adjustment of the dispute to which all necessary parties are bound. It is well es- tablished that an agreement between two unions to submit disputes to the IJDB does not constitute such a voluntary method if the employer in ques- tion has not agreed to do so or is not bound to the determination of the IJDB.1 Here, the Philadelphia area agreement to which the Employer and Sheet Metal Workers Local 19 are signatory provides that the Employer is bound by national agreements between the Sheet Metal Workers International As- sociation and other International unions covering work jurisdiction. Although there is an agreement between the two Internationals here to submit ju- risdictional disputes to the IJDB, 2 the Employer was bound to honor such awards only as long as the relevant provision of the Philadelphia area agreement was in effect. However, we find that the specialty agreement between the Employer and Local 19 validly terminated the Employer's duty to honor that provision as it applies to the submission of disputes to the IJDB. The specialty agreement states that the Employer shall not assign a stipula- tion to be bound by IJDB awards, that any such stipulations already signed are rescinded, and that the parties shall not submit any dispute to the IJDB. The Employer conceded that one reason it entered the specialty agreement was to avoid re- peating an experience in which it had been forced by a general contractor to honor an IJDB award of work to employees represented by Millwrights. However, absent evidence that the specialty agree- ment was signed in anticipation of the present dis- i International Alliance of Theatrical Stage Employees and Moving Pic- ture Machine Operators of the United States and Canada (Metromedia. Inc.), 225 NLRB 785, 788 (1976). 2 We take administrative notice of the fact the two Internationals are so bound by virtue of membership of the United Brotherhood of Carpen- ters and Joiners and the Sheet Metal Workers International Association in the Building and Construction Trades Department of the AFL-CIO. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pute or after the dispute began, we do not find it improper. 3 On the basis of the entire record, we conclude that there is reasonable cause to believe that a vio- lation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the volun- tary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board 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 factors.4 The Board has held that its determination in a ju- risdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case. 5 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements The Employer does not have a contract with Millwrights. It does have a contract with Sheet Metal Workers. Article I, section 2, of the specialty agreement between the Employer and Local 19 provides that the jurisdiction of the agreement covers, inter alia, metal shelving and heavy duty racks. Millwrights asserts that the disputed work involves light gauge metal racks and thus the Sheet Metal Workers contract does not cover the work in dispute. However, the evidence establishes that the parties intended the contract terms "metal shelving" to cover work such as that in dispute. Thus, Thomas Kelly, president of Local 19, testi- fied that the miniload system involved here is shelving, and he contrasted "pallet racks" with "mini-way" systems using "bins" for storage. This description is clarified by the testimony of Daniel Shirk, site manager for the general contractor, who also described the disputed work as shelving. Ac- cording to his testimony, the kind of automated storage system involved here is shelving if its stor- age components are tote pans, and racks if they are pallets, which are normally larger than tote pans. Finally, the Employer's president testified that the disputed work involves shelving and that the deci- I See Laborers District Council of Washington. D.C. and Vicinity, affili- ated with Laborers' International Union of North America, AFL-CIO (Western Caissons. Inc.), 240 NLRB No. 154, sl. op., p. 9 (1979); Local 423, Laborers' International Union of North America, AFL-CIO (V & C Brickcleaning Company), 203 NLRB 1015 (1973). 4N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Colum- bia Broadcasting System], 364 U.S.573 (1961). B International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). sive factor in assigning the disputed work to em- ployees represented by Local 19 was that it was considered to be shelving. Accordingly, we con- clude that the collective-bargaining agreement favors assignment of the work in dispute to em- ployees represented by Local 19. 2. Employer preference and past practice The Employer's president testified that the Em- ployer has used exclusively locals of Sheet Metal Workers to erect light-gauge sheet metal shelving since 1964, and that it assigned the disputed work to employees represented by Local 19, in part, be- cause of its members' experience in erecting metal shelving. The Employer has used sheet metal workers to install at least three other Eaton- Kenway miniload systems, as well as 25 other light-gauge sheet metal shelving systems in the Philadelphia area. McCaffery also estimated that the Employer has done similar work with sheet metal workers in 40 States. By contrast, McCaffery testified the Employer's consistent practice, with one exception, has been to use millwrights only for the installation of machinery on rack systems form- ing part of the structural support of a building. The one exception occurred when the Employer was threatened with loss of a contract if it did not assign the work to employees represented by Mill- wrights. We therefore find that the factors of the Employer's preference, assignment, and past prac- tice favor assignment of the disputed work to em- ployees represented by Sheet Metal Workers. 3. Relative skills and efficiency of operation The record establishes that both sheet metal workers and millwrights possess the skills needed to perform the work in dispute. While it might be concluded from the evidence that sheet metal workers erect more shelving than millwrights, and millwrights erect more racks, both racks and shelv- ing are constructed by positioning and bolting to- gether manufactured components. Both types of work involve essentially the same tools and skills. While McCaffery testified that manual dexterity is crucial for the efficient performance of the disput- ed work because of the great number of bolts in- volved, and that employees represented by Sheet Metal Workers possessed such dexterity from their experience in erecting shelving, there is no reason to assume millwrights have not gained the needed dexterity from their experience in erecting racks. Accordingly, the factors of skill and efficiency of operation favors neither group of employees. MILLWRIGHTS AND MACHINE ERECTORS LOCAL No. 1906 237 4. Impartial board determination The IJDB awarded the work in dispute to em- ployees represented by Millwrights on the ground that the work involved the erection of light-gauge storage racks and that the practice in the trade was to assign such work to millwrights. However, the award does not set forth and discuss the crucial issue of whether the factors supporting an award to employees represented by Millwrights outweighed those supporting an award to employees represent- ed by Sheet Metal Workers. Accordingly, we find that the award of the IJDB is not entitled to sig- nificant weight.6 5. Industry and area practice On the basis of the record before us, we con- clude that area practice in the assignment of work such as that in dispute favors an award of the work here to employees represented by Sheet Metal Workers. However, we conclude that there is in- sufficient evidence regarding industry practice to favor an award to either group of employees. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees who are represented by Sheet Metal Workers' International Association, Local Union 19, are entitled to perform the work in dis- pute. We reach this conclusion relying on the fac- tors of employer preference, assignment, and past practice, as well as area practice and assignment of the work under the collective-bargaining agree- ment. In making this determination, we are award- 6 Cement Masons Local Union No. 577 (Rocky Mountain Prestress. Inc.). 233 NLRB 923 (1977). ing the work in question to employees who are represented by Sheet Metal Workers' International Association, Local Union 19, but not to that Union or its members. The present determination is limit- ed to the particular controversy which gave rise to this proceeding. 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 makes the following Determination of Dispute: 1. Employees of Modern Erection Service, Inc., who are represented by Sheet Metal Workers' In- ternational Association, Local Union 19, are enti- tled to perform the erection of the Eaton-Kenway miniload storage system at the General Motors parts warehouse in Bensalem, Pennsylvania. 2. Millwrights and Machine Erectors Local No. 1906, United Brotherhood of Carpenters and Join- ers, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Modern Erection Service, Inc., to assign the disputed work to employees represented by that labor organiza- tion. 3. Within 10 days from the date of this Decision and Determination of Dispute, Millwrights and Machine Erectors Local No. 1906, United Brother- hood of Carpenters and Joiners, shall notify the Regional Director for Region 4, in writing, wheth- er or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determina- tion.