Carpenters Dist. Council of Houston

CARPENTERS DIST. COUNCIL OF HOUSTON Carpenters District Council of Houston and Vicinity, and Millwrights Local Union No. 2232 and Continental Can Company and United Steelworkers of America, AFL-CIO. Case 23-CD-134 June 5, 1967 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following charges filed by Continental Can Company , herein referred to as the Employer , alleging, in substance, that Carpenters District Council of Houston and Vicinity, and Millwrights Local Union No. 2232, herein referred to respectively as the Council and Local 2232 and collectively as the Respondents, violated Section 8(b)(4)(i ) and (ii)(D) of the Act by engaging in conduct to force or require the Employer to assign certain disputed work to employees represented by Local 2232, and not to its own employees represented by United Steelworkers of America, AFL-CIO, herein called Steelworkers. Pursuant to notice , a hearing was held before Hearing Officer Richard J. Linton on April 4, 1967. Employer and Steelworkers appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross -examine witnesses, and to adduce evidence bearing on the issues .' The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. A brief filed by the Employer has been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case , the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is a New York corporation engaged in the business of selling metal containers. It maintains an office and plants in Houston, Texas, as well as in other States of the United States. During the past 12 months, the Employer has purchased goods, materials, and equipment valued in excess of $50,000, which goods, materials, and equipment were shipped from points outside the State of Texas to the Employer at Houston, Texas. Accordingly, we find that the Employer is engaged in commerce ' Although the Council and Local 2232 were duly notified of the hearing neither appeared at the hearing and neither filed a brief 2 See, for example, Millwrights' Local 2232, Carpenters 177 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 ORGANIZATIONS INVOLVED Testimony was adduced at the hearing which shows that Steelworkers is a labor organization within the meaning of the Act. Although neither the Council nor Local 2232 appeared at the hearing, we have previously found these organizations to be labor organizations within the meaning of Section 2(5) of the Act.2 Accordingly, we find that the Council, Local 2232, and Steelworkers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Issue The work in dispute, as shown by the record, is the installing of various tooling, such as dies and punches, at the Employer's Plant 440, Houston, Texas, and the precision tuning of production machinery so that it operates properly and is precisely synchronized with the other operations on the production line. B. Background The Employer manufactures and sells metal containers to breweries and other customers. It has a contract in the Houston, Texas, area to sell 50 million seamless cans annually to the Anheuser- Busch brewery, with deliveries commencing in June 1967. To fulfill this contract, Employer is constructing its Plant 440, located at 8501 East Freeway, Houston, Texas, and has subcontracted the installation of the production machinery to PMI Corporation, herein called PMI. PMI utilizes the services of millwrights pursuant to a national contract, and in the Houston area uses members of Local 2232. The installation work subcontracted to PMI included setting, leveling, and cleaning the basic machinery, but did not include tooling or tuning the machines after they were installed. Tooling involves inserting certain punches, chucks, gears, and similar items into the interior of the machines, and tuning is an intricate operation which involves synchronization of the operational parts of the individual machines and of all machines on a particular production line to each other in order that the production line will operate as an integrated system geared to a production rate of 200 cans per minute. When the first machine, a National Impact Extrusion press, reached the tooling stage in early (Farnsworth & Chambers), 122 NLRB 300, enfd as modified 277 F.2d 217 (C.A. 5, 1960), cert. denied 366 U.S. 908 165 NLRB No. 20 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 1967, Kenneth Banks, business agent for Local 2232, claimed that members of Local 2232 had the right to perform the tooling and tuning up of the machine to the point of production. The Employer rejected this claim of Local 2232, and asserted that this work was to be assigned to its own employees who were represented by the Steelworkers. On February 10, 1967, Robert Newell, PMI vice president; Charlie Sossamon, PMI job superintend- ent; J. E. Perry, project coordinator for the Employer; James Mayer, resident construction supervisor for the Employer; and Henry O'Shaughnessy, manager of Plant 440, met with Banks to discuss Local 2232's claim to the tooling and tuning-up work. Newell advised Banks that the PMI contract with the Millwrights did not include tooling and tuning of the machinery, that PMI had no contract with the Employer to perform such work, and that PMI was not interested in such contract. O'Shaughnessy informed Banks that this work was covered by the Employer's contract with the Steelworkers and that the Employer had conducted an extensive training program at great expense in preparing its employees to perform such work. Banks then stated "Well, I know what I will have to do" and left the meeting. The following Monday, February 13, 1967, the Employer determined that one of the extrusion presses was ready for tooling and assigned it to its maintainers for tooling and tuning. A short while later Banks asked O'Shaughnessy to meet with him again. O'Shaughnessy agreed and Banks, in company with the business agents for the electricians and pipefitters unions, met with O'Shaughnessy and Mayer. Banks again laid claim to the disputed work for Local 2232. Alternatively, he proposed that the Employer, in the performance of the disputed work, limit its employees to two per machine or that the Employer assign one millwright to each of the Employer's employees working on the disputed work. The Employer rejected Banks' claim and his alternative proposals. Banks then stated that it would be difficult to have the Employer's employees working next to the equipment the millwrights were installing. At that point the meeting recessed. When it reconvened later that morning, Council Representative Jack O. Fountain, who accompanied Banks, asserted Local 2232's right to the work. The Employer again rejected the claim and told Fountain that its own employees would do the work. According to O'Shaughnessy, Fountain then said "I 'know what I will have to do" and, accompanied by the other union representatives, left the meeting. Later that morning, about 11:30 a.m., a picket appeared near the boundary of Employer's Plant 440 carrying a sign which read: ' The only mention of the wage rate paid to the Employer's employees was a casual comment by Banks that it would be difficult for him to have the Employer's employees working on a piece of equipment next to equipment that apparently higher paid Carpenters District Council protests the Payment of Substandard Wages by Continental Can. After the picket appeared, some 75 employees, who were members of various craft unions and employed by subcontractors then engaged in various phases of the construction project, ceased working. These employees returned to work the following day when the picket was removed. C. Contentions of the Parties Employer and Steelworkers contend that a jurisdictional dispute exists and that the Employer's assignment of the work to its employees is determinative . In the alternative , they contend that the disputed work should be assigned to the Employer's employees who are represented by the Steelworkers , based on the collective -bargaining agreement , company and industry practice , skills and training involved , and economy of operation. As indicated , neither the Council nor Local 2232 appeared at the hearing, and neither, filed any pleading at or prior to the hearing. D. Applicability of the Statute In accordance with the requirements of Section 10(k) of the Act, the Board must first ascertain whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. The record shows that on February 13, 1967, the Respondents met with the Employer's representa- tives for the purpose of discussing their claim to the disputed work. Upon the Employer's rejection of their claim, both Banks and Fountain stated that in such circumstance "they knew what to do," and that later the same day the Respondents caused the Employer's Plant 440 to be picketed. Although the picket sign purportedly protested substandard wages paid by the Employer, there is no basis for concluding that the sole or even an object of the picketing was to protest the Employer's alleged substandard wages. At no time were the wages paid by the Employer a subject of serious discussion.3 On the contrary, the record is clear that Respondents' insistence on the Employer assigning the particular work to millwrights showed a concern not with obtaining higher wages for the members of the Steelworkers, but with securing for Local 2232 members the disputed work which was claimed by and being performed by the Employer's employees represented by the Steelworkers. Accordingly, we find that there is reasonable cause to believe that Respondents Council and Local 2232 violated millwrights were installing In any event , the work being done by millwrights was different from the tooling and tuning up performed by Employer's employees, and therefore provided no basis of comparison CARPENTERS DIST. COUNCIL OF HOUSTON Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to all relevant factors. The following factors are asserted in support of the Employer's and Steelworkers' claims. 1. Collective-bargaining contract The Employer claims that its current contract with Steelworkers covers the work in question. The contract, a multiplant agreement effective October 1, 1964, and terminating January 31, 1968, recognizes the Steelworkers as the exclusive collective-bargaining agent for all employees in its bargaining unit at Plant 440. Article I of appendix E, dealing with training programs, in section 1(c), provides that the Employer will train employees for trade or craft or skilled jobs wherever, in its opinion, it is practical to do so or a need exists for such training. It was pursuant to such provision that the Employer undertook to train its equipment maintainers at Plant 440 when the need arose, and it is also established that at another of its plants where the same machinery is installed, the work of tooling and tuning the machinery was assigned to its own employees. On the other hand, the evidence is also clear that PMI had no contractual obligation to the Respondents to assign such work to its millwrights. Moreover, PMI's contract with the Employer did not contain any provision for tooling or tuning the machinery after installation by PMI's employees. In the circumstances, we conclude that the Employer's employees represented by the Steelworkers have a strong contractual claim to the particular work. 2. Employer and industry practice The Employer's practice in its other plants has always been to assign the work of tooling and tuning up machinery to its own employees, and it has never assigned this work to any other workers. Furthermore, there is undisputed testimony in the record that American Can Company, National Can Company, The Crown Company, and Reynolds Aluminum Company also assign similar work to their own employees and not to millwrights. It is clear, therefore, that Employer and industry practice favor awarding the work to the Employer's employees represented by the Steelworkers. 3. Skill, efficiency, and economy factors The Employer adduced evidence to show that the work of tooling and tuning its seamless container 179 manufacturing machinery requires a high degree of skill. The Employer selected skilled workmen from its employees and sent them through an intensive training program for 5 months, at a cost of approximately $100,000, before it considered them qualified as maintainers to perform this work on machinery valued at about $2 million. The machinery involved comprises three complete production lines at Plant 440. Each line, when complete, will contain two impact extrusion presses, two wall ironing machines, four panel trim flange machines, one tester, one coater, one printer, two pin ovens, one inside bake oven, five spray machines, and one palletizer. After installation of the machinery, the maintainers install various tooling, such as dies and punches, and then tune this machinery so that each operates properly and is precisely synchronized with all other operations on the line. Jim Mayer, Employer's resident construction superintendent, testified that in installing the tooling the maintainers work to tolerances of .0002 of an inch, and if the tooling is not properly installed it would be smashed and the machine ruined. There is no evidence in the record that millwrights have ever performed the tooling and tuning up work on this type of machinery or to show that they possess the requisite skills to perform such work. Furthermore, if the Employer were to comply with Respondents' demand for the disputed work, the Employer would be required to replace its maintainers, whom it has trained at great expense, and use millwrights whose ability to perform this work is very much in question. On the record as a whole, we find that the factors of skill, efficiency, and economy of operation favor the Employer's practice of assigning the work to its employees. Conclusions as to Merits of the Dispute It appears from the foregoing that all of the relevant factors favor the Employer's assignment of the disputed work to its employees. Accordingly, we shall award the work to the Employer's employees represented by the Steelworkers. In making this determination, we are awarding the work to the employees of the Employer who are currently represented by Steelworkers, but not to that Union or its members. 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 employed as maintainers by Continental Can Company , currently represented by United Steelworkers of America , AFL-CIO, are entitled to perform the work of tooling and tuning 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production machinery installed in the Employer's Plant 440, Houston , Texas. 2. Carpenters District Council of Houston and Vicinity and Millwrights Local Union No. 2232 are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Continental Can Company to assign the above work to members of, or employees represented by, Millwrights Local Union No. 2232. 3. Within 10 days from the date of this Decision and Determination of Dispute, Carpenters District Council of Houston and Vicinity and Millwrights Local Union No. 2232 shall notify the Regional Director for Region 23, in writing, whether they will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to the members of Local 2232 rather than to the Employer's own employees currently represented by United Steelworkers of America, AFL-CIO.