Local 110, Sheet Metal Workers Int'l Assn., Etc.

LOCAL 110, SHEET METAL WORKERS INT'L ASSN., ETC. 947 (d) Notify the Regional Director for the Eighth Region , in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order what steps have been taken to comply herewith.? 7In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify the said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT encourage membership of any employee in any labor organiza- tion by discharging or laying off any employee , or in any other manner discrim- inating against any employee in regard to hire , tenure of employment, or any term or condition of employment , except as authorized by Section 8(a)(3) of the Act. WE WILL NOT interfere with , restrain, or coerce employees in any manner, in connection with the exercise of the right to self -organization, to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment , as authorized in Section 8(a) (3) of the Act. WE WILL offer Orville Williams immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of our discrimination against him. AMERICAN BRIDGE DIVISION, UNITED STATES STEEL CORPORATION, Employer. Dated---- --------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from date of posting and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland , Ohio, 44115, Telephone No. Main 1-4465 if they have any question concerning this notice or compliance with its provisions. Local 110, Sheet Metal Workers International Association, AFL- CIO, and its Agents Allen Board and Randolph Heyser and Brown and Williamson Tobacco Corporation, Charging Party and Lodge 681, International Association of Machinists, AFL- CIO, Party to the Dispute. Case No. 9-CD-64. July 30, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, following the filing of charges under Section 8 (b) (4) (D) of the Act. A hearing was held before Donald G. Logs- don, hearing officer, on April 1, 2, and 3, 1963. All parties who 143 NLRB No. 99. 717-672-64-vol. 143-61 948 DECISIONS Or NATIONAL LABOR RELATIONS BOARD appeared at the hearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Charging Party and the Party to the Dispute and have been duly considered. Upon the entire record in the case, the Board 1 makes the following findings : 1. Brown and Williamson Tobacco Corporation (herein called the Company) is a Delaware corporation engaged in the manufacture of cigarettes and smoking tobacco at its plant located at 1600 West Hill Street, Louisville, Kentucky. During the calendar year of 1962, in the regular course of business, it caused goods, valued in excess of $1 million, to be brought into the State of Kentucky, and shipped from its plant to points outside the State of Kentucky goods valued in excess of $1 million. We find that the Company is engaged in commerce within the mean- ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. Local 110, Sheet Metal Workers International Association, AFL- CIO, herein called Sheet Metal Workers or Respondent, and Lodge 681, International Association of Machinists, AFL-CIO (herein called Machinists, or IAM), are labor organizations within the meaning of Section 2 (5) of the Act. 3. The dispute. A. Facts Conflicting claims for certain work assignments exist at the Louis- ville plant of the Brown and Williamson Tobacco Corporation. The work in dispute involves maintenance functions at the plant. Ma- chinists have been assigned this work for many years and are pres- ently doing it. The specific jobs are: (1) angle iron fabrication of structures and framework in connection with sheet metal work; (2) installation of hanging fans, industry exhaust fans, volume fans, window exhaust fans, and air-conditioning blowers; (3) installation and removal of automatic louvres installed in connection with win- dow exhaust fans; (4) welding by the electric arc method or oxy- acetylene torch where used in connection with sheet metal work ; (5) repair and modification of cigarette trays. Both the IAM and Sheet Metal Workers contend that the job assignments should go to employees represented by them. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman McCulloch and Members Rodgers and Leedom]. LOCAL 110 , SHEET METAL WORKERS INT'L ASSN., ETC. 949 Both unions have been parties to collective -bargaining contracts with the Company for many years .2 Neither has ever been certified.' The most recent Sheet Metal Workers contract expired in August 1962. In 1961 the Company was involved in jurisdictional disputes between various crafts at this plant,4 and in order to forestall future disputes the Company suggested changing jurisdictional language in various contracts s so that each craft would be guaranteed the work that had been assigned to it in the past. At negotiations sub- sequent to the expiration of the Respondent's contract the Company advanced this proposal . Respondent rejected the proposal and claimed that under the jurisdictional clause in the expired contract it was entitled to the area practices as far as sheet metal work was con- cerned. During the course of negotiations, the Respondent made claim to the five areas of -work in issue here, although members of the JAM had always performed the work in four of the categories and had performed the Work in the fifth category since 1957. On December 12, 1962, during negotiations on a contract, Allen Board, business agent of Respondent , had a telephone conversation with Frank Chance, chief negotiator for the Company . During a dis- cussion of the disputes over work assignments, Board, told Chance that, "We never put a picket line up but we would not hesitate to do so." At a meeting on January 14, 1963, the Respondent agreed to all of the Company's contract proposals except that pertaining to the Respondent's jurisdiction . During the meeting, Board , in relating a previous dispute with the Company over the hanging of a fan, stated, "We got no consideration on it and we won't allow it to happen again, and if we have to strike, that will be part of it." On January 15, 1963, the Company reduced its contract proposals to writing and distributed them to the Respondent . At a subsequent meeting on February 12, The IAM since 1937, the Sheet Metal Workers since 1946 ' The Company voluntarily recognized both the Respondent and IAM. On May 10, 194'8, a U.A certification ( authorization to execute a union-security contract) was issued to Lodge 681. ' See Pipefttters Local Union No 522 and Plumbers and Gas Fitters Local No 107, United Association of Journeymen and Apprentices of the Plumbing and Pipefittinq Indus- try of the United States and Canada, AFL-CIO (Brown and Williamson Tobacco Corpora- tion), 139 NLRB 1140. 5 The jurisdictional provision in the Sheet Metal Workers' expired contract stated: All work coming under the jurisdiction of the Sheet Metal Workers International Association shall be performed by the Sheet Metal Workers International Association members only, and employee members of the Union shall perform all sheet metal work required of them by the Company In the event of any dispute as to whether the employee on any particular work should be a member of the Union or of some other union affiliated with the American Federation of Labor, then the Sheet Metal Workers International Association and Local No. 110 shall do everything within their power promptly to settle such dispute. Pending the final settlement of such dispute, the work subject of the dispute shall be performed by an employee as the Company deems proper until such time as such dispute shall have finally been settled and such settlement acquiesced in by all the parties thereto and there shall be no stoppage of work by the union by reason of such dispute. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company asked for the Respondent's response to its new written proposals and Board replied, "We are in agreement with everything but the jurisdictional language." On February 25, during the course of another negotiating session, the Company and the Respondent dis- cussed the assignment of the work in dispute. No agreement was reached and Heyser, Respondent's chief business representative, stated, "We don't like to threaten a strike, but we will strike if we have to." Throughout the negotiations the Respondent insisted that the jurisdic- tional language contained in the expired contract be incorporated in any new contract and that the language be interpreted to award sheet metal work to employees represented by the Respondent in accordance with "area practice," which the Respondent maintained would entitle it to the work in the five areas of dispute. B. Contentions of the Parties The IAM and the Company take the position that the work assign- ments as they are presently being made are not in violation of con- tract or certification and should continue in the present manner. The Respondent, admitting the threats, claims they were made to achieve u new contract and not to coerce the Company in its job as- signments. Respondent also takes the position that the disputed work is sheet metal work and alleges that area practice establishes its claim to it. C. Applicability of the statute The Board must be satisfied that there is reasonable cause to believe that Section 8 (b) (4) (D) of the Act was violated before it may proceed with a determination of dispute pursuant to Section 10 (k) of the Act. The facts of this case show repeated threats to strike unless Respond- ent's demands were met regarding the work assignments. These threats are admitted. The contention of the Respondent that the threats were made only to secure the contract provision existing in the expired contract does not correspond to the factual context surround- ing the demands for specific work assignments . The provision had existed in previous contracts for several years. The contract demands, though real, carried with them an equally real demand for the disputed work. The Respondent was attempting to obtain the work in the five areas of dispute by asserting that the jurisdictional provision in the expired contract should be interpreted to assign work according to area practice, thus giving the work to the Respondent's members. This was directly contrary to the interpretation always placed on the pro- vision and generally acquiesced in by all the parties that plant practice should prevail in the making of work assignments. That the Re- LOCAL 110, SHEET METAL WORKERS INT'L ASSN., ETC. 951 spondent asserted its claim at the time of contract negotiations in the form of a contractual demand does not disguise the fact that it was an attempt to obtain job assignments by demanding the reinterpreta- tion of a contract provision. The Board has consistently held that jurisdictional demands, in the guise of contract interpretation, are not insulated from the reach of Section 8(b) (4) (D) merely because the work dispute stems from the Employer's and Union's differing inter- pretations of a jurisdictional clause.' We find, upon the basis of the foregoing, that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated. Accord- ingly, we further find that the dispute is properly before the Board for determination under Section 10 (k) of the Act. Merits of the Disputes There have been no changes in the disputed work assignments for several years. The Machinists have done the work. Neither the Sheet Metal Workers nor Machinists have contract provisions which explic- itly cover' the jobs. We cannot view the jurisdictional provisions in the Sheet Metal Workers contract as evidence in support of its demands, for we think it apparent from the record that they themselves have not thought so. Thus, since 1957, as pointed out above, this provision has existed in the collective-bargaining agreements between the parties, with a general acquiescence in the work assignments as they presently exist. Nor do we agree with the Respondent's contention that area prac- tice would establish these assignments in favor of the Sheet Metal Workers. The record shows that work of this nature is, indeed, done by members of the Respondent Union, but this has been in other in- dustries, i.e., construction. The Board has recognized area practice as a relevant factor in jurisdictional disputes's but it has also estab- lished that no substantial significance can be attached to patterns of work assignments in industries different from the one involved in the dispute.' Furthermore, a witness for the Respondent admitted that at a plant of a competitor of the Company in Louisville, work similar to that at issue was assigned to employees represented by the Tobacco Workers. 9 Wtillamette National Lumber Co., et at., 107 NLRB 1141, at 1143. 'Except perhaps article 1, section 1(b) of the IAM contract which provides for the representation of welders. 8 J A Jones Construction Company, 135 NLRB 1402. 9 Pipefittere Local 'Union S22, and Plumbers and aasfltters Local 107, TJnsted Assocsa- toon of Journeymen and Apprentices of the Plumbers and Pspefitters of United States and Canada, AFL-CIO (Brown and Williamson ), supra 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No issue exists as to the competency of those presently assigned this work. In some instances TAM members have been doing the specific work since 1937. Essentially, therefore, we see but a bare claim for the work by the Sheet Metal Workers, with little more. We have been presented with no convincing reasons to change work assignments that have existed for many years. In view of the foregoing, we shall determine the jurisdictional dispute by awarding the disputed work to the machinists. The present determination is limited to the particular controversy which gave rise to this proceeding. The Board is assigning this work to machinists who are represented by Lodge 681, International Association of Ma- chinists, and not to the TAM or its members. We find that the Sheet Metal Workers are not and have not been entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require Brown and Williamson Tobacco Corporation to assign the disputed work to sheet metal workers rather than to machinists. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and upon the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. Machinists employed by the Brown and Williamson Tobacco Corporation who are represented by Lodge 681, International Associa- tion of Machinists, AFL-CIO, are entitled to perform the work in dispute herein, specifically: work tasks involving (1) angle irons, (2) hanging fans, (3) louvres, (4) welding, and (5) repair and modifica- tion of metal trays at the Brown and Williamson plant in Louisville, Kentucky. 2. Local 110, Sheet Metal Workers Association, AFL-CIO, and its agents, Allen Board and Randolph Heyser, are not and have not been lawfully entitled to force or require the Brown and Williamson Tobacco Corporation to assign the disputed work to sheet metal workers. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 110, Sheet Metal Workers International Association, AFL-CIO, and its agents, Allen Board and Randolph Heyser, shall notify the Regional Director for the Ninth Region in writing whether or not it will refrain from forcing or requiring the Brown and Williamson Tobacco Corporation by means proscribed by Section 8 (b) (4) (D), to assign the work in dispute to sheet metal workers who are its members rather than machinists who are represented by Lodge 681, International Association of Machinists, AFL-CIO.