Millwrights, Local No. 2209--2

MILLWRIGHTS, LOCAL NO. 2209-2 827 Millwrights, Conveyors, & Machinery Erectors, Local No. 2209, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, And Its Agent, Russell Bosard and Griffin & Company and District Lodge No. 27, And Its Local, Kentucky Lodge No. 681, International Association of Machinists and Aerospace Workers, AFL-CIO and Ambrosius Construction Company and Brown& Williamson Tobacco Corporation. Case 9-CD-98 during the past fiscal year it performed services valued at more than $50,000 outside the State of Kentucky. During A his same period it also purchased directly from firms located outside the State of Kentucky, goods valued in excess of $50,000. We find, accordingly, that the Employer is en- gaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. July 19,1967 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BROWN, JENKINS, AND ZAGORIA This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by Griffin & Company, herein called Charging Party, or Company, alleging that Millwrights, Conveyors, & Machinery Erectors, Local 2209, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its Agent, Rus- sell Bosard, herein called Millwrights and Bosard respectively, had violated Section 8(b)(4)(i) and (ii)(D) of the Act. The charge alleges, in substance, that the Millwrights, through Bosard, threatened to picket the site of Brown & Williamson Tobacco Corporation where the Company was installing a "hogshead conveyor" in order to force the Com- pany to assign certain work to the Millwrights rather than to District Lodge No. 27 and its Local Kentucky Lodge No. 681, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, herein called Machinists. A hearing was held on February 13 and 14, and March 8, 1967, before Hearing Officer Donald G. Logsdon. All parties, except Ambrosius Construction Com- pany, participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bear- ing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Respond- ents, the Charging Party, and Brown & William- son Tobacco Corporation filed briefs. 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 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 Griffin & Co., a Kentucky Corporation, is en- gaged in the mechanical contracting business and II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that the Respondents and the Machinists are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work In Dispute The dispute involves the work performed by em- ployees represented by the Machinists in the instal- lation of a hogshead conveyor on the premises of the Brown & Williamson Tobacco Corporation, 1600 West Hill Street, Louisville, Kentucky. Griffin has a contract to manufacture and install a custom-built hogshead conveyor at the Brown & Williamson plant. Griffin has performed other con- veyor work at Brown & Williamson for approxi- mately 10 years using employees represented by the Machinists, but the disputed installation is the only hogshead conveyor at the plant. Although Griffin fabricates conveyors for a number of in- dustries, including the tobacco industry, Brown & Williamson is the only customer for whom it installs them. Griffin began construction on the work in dispute herein in April 1966, and assigned the installation work in dispute herein to employees represented by the Machinists. Griffin employs no machinists but secures all its machinists under a labor supply con- tract with Ambrosius Erecting Company which has a contract with the Machinists. These machin- ists remain on the Ambrosius payroll, but they are supervised and directed on the job by Griffin su- pervisors. For the past 10 years, Griffin's similar work for Brown & Williamson has been assigned in this way to employees of Ambrosius, who are represented by the Machinists. The Respondents showed that during 1966, two other companies, Rapidstan and Logan Company, had installed conveyor systems at a Brown & Wil- liamson plant, using employees represented by the Respondents. However, Brown & Williamson stated that those were catalog-type conveyors, as opposed to the custom-built conveyors installed by Griffin. 166 NLRB No. 91 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Evidence of Conduct Violative of Section 8(b)(4)(D) About June 3, 1966, when the-work was about 90 percent complete, Russell Bosard, business representative of Respondent Union, called Wil- liam J. Griffin, chairman of the board of Griffin, and claimed jurisdiction over the work in dispute and threatened to picket to obtain the work. Prior to making the claim to the work in dispute herein to Griffin, Bosard has discussed the claim with Joseph E. Logsdon, Machinists' business agent. Logsdon agreed that under an agreement between the International Unions of the Respon- dent and Machinists, the work properly belonged to the Respondent Union.' However, subsequently an International- representative of the Machinists dis- agreed with Logsdon's interpretation of the agree- ment, insisted that such work was properly assigned to the Machinists, and so told Gnffin.2 After the dispute herein began, the said agreement between the two unions was cancelled. On September 27, 1966, Bosard renewed his threat to picket the jobsite if the work was not as- signed to members of the union. Bosard told Mudd, assistant chief engineer of Brown & Williamson, "that Brown & Williamson should be aware of the fact that if Griffin & Company continued the instal- lation of the hogshead conveyor in our building 4 that the Millwrights would put a picket out at Griffin's job site." On November 7, 1966, Bosard had a telephone conversation with Mudd. According to Mudd, Bosard stated that, if the hogshead conveyor instal- lation was completed with machinists, he "would have to put a picket up" at the jobsite at Brown & Williamson. Bosard admitted talking to Mudd November 7 but denied making the threat. A picket line was never actually established, because after the threat was allegedly made to Grif- fin, he consulted with Brown & Williamson, and together they decided to shut down the job until the dispute could be settled. The job remained shut down from June 3, 1966, until after January 16, 1967, when the Respondents informed all parties that they would not picket the job pending the resolution of the dispute by the National Labor Relations Board by means of a jurisdictional dispute hearing. Griffin completed the disputed in- stallation of the hogshead conveyor after January 16, 1967. C. Contentions of the Parties (a) The Machinists contends that in view of the long-time assignment of the disputed work to its members, the Company's award of the work should be affirmed. (b) The Respondents contend in substance that since most relevant factors can support either claim for the work, the area practice in the Louisville area is important, and that this practice indicates that a major portion of the work in question has been han- dled by employees represented by the Millwrights. They further assert that in light of the Millwrights' affiliation with the National Building Trades De- partment and the National Joint Board for the Set- tlement of Jurisdictional Disputes, it has access to a voluntary method of settlement which the Machinists does not have. (c) Griffin & Company agrees with the Machin- ists, asserting that its past practice has been to as- sign the disputed work herein to the Machinists, and that such assignment was consistent with Brown & Williamson's assignment of work in the plant. Further, the Company contends that the Respondents had acquiesced in the assignment of work of this type by the Charging Party and by Brown & Williamson since the inception of the in- stallation of conveyors of this type. D. Applicability of the Statute Before the Board may proceed to a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is a reasonable cause to believe that Section 8(b)(4)(D) has been violated. As indicated above, the record contains ample and uncontradicted evidence that on June 3, and September 27, 1966, the Respondents threatened to picket with an avowed object of forcing or requir- ing the Charging Party to assign the disputed work to employees represented by the Respondent Union, rather than to employees represented by the Machinists. Accordingly, we conclude, on the basis of the entire record, 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 the Board for determination under Section 10(k) of the Act. E. The Merits of the Dispute As stated in the J. A. Jones case 3 we shall, pur- suant to the Supreme Court's C. B. S. decision,' ' Article 2 of the Machinist-Respondent agreement - the article upon which Bosard based his contention for the disputed work- reads in its material part It is agreed that the United Brotherhood of Carpenters and Joiners of America has,lunsdiction over the following work Section (a) The handling, erecting and installing of machinery, mo- tors, conveyors and equipment in new construction and additions, ex- cept as provided in Articles 1, 111, and IV i Article 3 of the same mterumon agreement stated In a plant or factory where the International Association of Machinists has been certified or recognized as the bargaining agent, or any plant where .. Machinists are employed directly or through a contractor for the installing of machinery and equipment, the United Brotherhood of Carpenters and Joiners of America shall not interfere with work covered by such . contract International Association of Machinists, Lodge No 1743, AFL-C10 (J A Jones Construction Company), 135 NLRB 1402 N L R B v Radio and Television Broadcast Engineers Union, et al (Columbia Broadcasting System), 364 U S. 573 MILLWRIGHTS, LOCAL NO. 2209-2 829 determine, in each case presented for resolution under Section 10(k) of the Act, the appropriate as- signment of the disputed work only after taking into account the evidence supporting the claims of the parties and balancing all relevant factors. (1) Certification and bargaining agreements The evidence indicates there is no Board certifi- cation relative to the disputed work, and there is no bargaining agreement covering the disputed work. The Company at one time had a contract with the Machinists, but it expired in 1960 and was not renewed. Further, the interunion agreement between the Respondent Union and the Machinists, previously referred to, is no longer in effect. As there is no certification or collective-bargain- ing agreement covering the disputed work, neither the Respondent Union nor the Machinists are favored by these factors. (2) Company and industry practice Since 1957, when the Company first began in- stalling customized metal conveyors at Brown & Williamson, it has consistently assigned the disputed conveyor installation work to members of the Machinists Union. Brown & Williamson is the only customer for whom the Company installs con- veyors. The practice of Brown & Williamson, when it installs conveyors of the type in dispute with its own employees, is, and has always been, to use machinists to do the work. The evidence shows that in the tobacco industry, Millwrights' members were used to install standard, conventional-type conveyors on the Logan and Company job and Rapidstan job at Brown & Wil- liamson in 1965-66. Other industries in which the Respondent's members had installed conveyors in- clude the chemical industry, the automobile indus- try, plumbing industry, liquor and distilling indus- try, fertilizer industry, paper industry, and the alu- minum industry. However, the standard type con- veyors installed in all those instances are distin- guishable from the custom conveyors involved herein. Consequently, the area practice on which the Respondents rely does not relate to the installa- tion of custom conveyors and is, therefore, not a significant factor in determining the assignment of the work in dispute. In the absence of a relevant area or industry prac- tice, Griffin's practice of employing machinists to install conveyors of the type in dispute over the past 10 years, as well as Brown & Williamson's utiliza- tion of its own machinists for general conveyor work are factors favoring the assignment of the disputed work to employees represented by the Machinists. (3) Efficiency of operation, skills involved In the 10 years the Company has been instal- ling the conveyors at Brown & Williamson, the machinists have demonstrated, to the satisfaction of both the Company and Brown & Williamson, that they possess the knowledge and skill necessary to install customized conveyors. Thus, they are skilled in the use of jacks, levels, transits, large wrenches, the regular personal tools the machinist normally carries, and heavy rigging equipment. While it appears that the Respondent's members also possess the skill necessary to install conveyors and can use the tools efficiently that are necessary for that installation, their work has been limited to standard conveyors, and their skill in regard to custom conveyors remains a question. On balance it appears that members of both the Respondents and the Machinists are familar with the use of the tools required in conveyor installa- tion, but the machinists have demonstrated to the Company and its customer that they possess the requisite skills to install custom conveyors. Hence we find that this factor favors the assignment to em- ployees represented by the Machinists. F. Conclusion On the basis of the foregoing considerations, we conclude that the relevant factors favor an assign- ment of the work in dispute to employees represented by the Machinists, and we shall deter- mine the dispute in their favor. The Company's as- signment of work has been consistently to the machinists, who have demonstrated requisite skills for the work of installing custom conveyors, and Brown & Williamson, itself, has assigned the work of installing conveyors to machinists on its payroll, apparently with the acquiescence of the Respond- ents, for a substantial period of time. Although the Respondent Union members concededly perform the generally similar work of installing standard conveyors, they have not installed a custom con- veyor of the type here in dispute. Our present deter- mination, to award the work to the employees who are represented by the Machinists, but not to that Union or its members, is limited 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 case, the National Labor Relations Board makes the following Determination of Dispute. 1. Machinists, who are represented by District Lodge No. 27, and its Local, Kentucky Lodge No. 681, International Association of Machinists and 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aerospace Workers, AFL-CIO, and employed by Ambrosius Construction Company, and who are working for Griffin & Company under a labor supply contract, are entitled to perform the job of installing the custom hogshead conveyor at the plant of Brown & Williamson Tobacco Corpora- tion, 1600 West Hill Street, Louisville, Kentucky. 2. Millwrights, Conveyors, & Machinery Erectors, Local No. 2209, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Griffin & Company to assign the work described above to members of Millwrights , Conveyors , & Machinery Erectors, Local No. 2209 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute , Millwrights, Con- veyors & Machinery Erectors , Local No. 2209, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Region 9, in writing , whether or not it will refrain from forcing or requiring Griffin & Company by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination.