Local Union No. 67 of the Sheet Metal Workers, Local No. 3106

144 DECISIONS OF NATIONAL Local Union No. 67 of the Sheet Metal Workers In- ternational Association and General Supply Co., Inc. and Shop, Mill and Industrial Workers Local Union No. 3106 , United Brotherhood of Carpen- ters and Joiners of America . Case 23-CD-226 June 30, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN , AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by General Supply Co , Inc. (herein the Employer), alleging that Local Union No. 67 of the Sheet Metal Workers International Association (herein the Respondent or Sheet Metal Workers) violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Robert G. Levy II on February 25, 1970. Shop, Mill and Industrial Workers Local Union No. 3106, United Brotherhood of Carpenters and Joiners of America (herein the Carpenters), ap- peared at the hearing. All parties were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing upon the issues. Thereafter, the Respondent filed a brief. 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. 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 case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated as follows. The Employer, General Supply Co., Inc., is a Texas corporation with its principal office and place of business in San Antonio, Texas, where it is engaged in the wholesaling, distribution, manufac- turing, and erection of hard products and structural steel framework. During the past 12 months, the Employer has purchased goods, materials, and sup- plies valued in excess of $50,000, which were manufactured outside the State of Texas and shipped to the Employer at its San Antonio, Texas, location. We find that the Employer is engaged in LABOR RELATIONS BOARD commerce within the meaning of the Act, and that it will effectuate the purposes and policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find , that the Sheet Metal Workers and the Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background of the Dispute The Employer, as a subcontractor for Lyda, Inc., is engaged in the performance of a contract for the installation of roof decking for several new buildings at San Antonio State Hospital. The entire job consists of laying corrugated metal sheets of less than 10-gauge thickness over structural roof members, welding the same to the roof members, covering the sheets with reinforcing wire mesh, and pouring concrete aggregate over the wire mesh. A 10-man crew performs this job. The work in dispute involves that portion of the total job which concerns the layout of the metal sheets and the welding thereof to the structural decking members. Three of the ten-man crew, in- cluding a welder, perform this work. Work on the job commenced in early January 1970. On January 8 the Respondent's business agent arrived at the jobsite and determined that the three employees engaged in laying and welding the metal sheets were not members of, or represented by, the Respondent. He then told representatives of both Lyda and the Employer that the roof decking work belonged to the Respondent. The Employer advised him that there were 16 metal sheets yet to be laid on one unit and that it would hold off work on another unit until the Respondent contacted its International. No word having been received from the Respondent, the Employer resumed work on January 12. Picketing began the same day and con- tinued until January 15, 1970. The picket sign read: General Supply Co., Inc. pays its employees substandard wages* We protest the payment of sub-standard wages-Sheet Metal Workers Local 67, AFL-CIO *Wages below prevailing wage rates as established by the federal government. 184 NLRB No. 17 LOCAL UNION NO. 67 OF THE SHEET METAL WORKERS , LOCAL No. 3106 145 On January 15, the Employer left the job, and picketing ceased . Another firm completed the work on the second unit , which involved the installation of approximately 17,000 cubic feet of roof deck material from January 29 through February 9, for a total of 98 man hours . The Employer performs work requiring two men at 2 man-days per building. When the Employer again returned to the job, picketing resumed on February 17 and continued on February 18 and 20 . Rainy weather precluded picketing on February 19. B. The Work in Dispute tion Co.),' the Board set forth the following criteria to be considered in making an affirmative award in a 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute , e.g., the skills and work involved, cer- tifications by the Board , company and industry practice , agreements between unions and between employers and unions , awards of ar- bitrators , joint boards, and the AFL-CIO in the same or related cases , the assignment made by the employer, and the efficient operation of the employer 's business.2 The dispute concerns the laying of corrugated sheet metal plates on structural roof members and the welding of the sheets to the members. C. The Contentions of the Parties The Respondent Sheet Metal Workers only con- tention is that the work in dispute should be awarded to employees that it represents . The Em- ployer formally contends only that there is reasona- ble cause to believe that a violation of Section 8(b)(4)(D ) of the Act occurred, and that the dispute is therefore properly before the Board for determination under Section 10(k) of the Act. The Carpenters takes no position. 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. It is clear from the record that the Em- ployer made an assignment of the work in dispute to its own employees and that the Respondent en- gaged in picketing in order to require the assign- ment of that work to workers represented by the Respondent , thus clearly establishing a prima facie case supporting the alleged violation of Section 8(b)(4)(D) E. Merits of the Dispute Section 10 ( k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to all relevant fac- tors. In International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construc- 1. Work and skills involved Of the three men who perform the work in dispute , two are engaged in laying the sheet metal plates and the third in welding them . Two of the 10-man crew can perform the welding work. The Respondent contends that employees are qualified to perform the disputed work after a 4-year sheet metal worker apprentice training program. The Employer contends that whatever specialized skills its employees possess in performing the disputed work are obtained primarily through on-the-job ex- perience , and that employees in various other crafts, including carpenters , laborers , ironworkers, and unrepresented employees , perform similar welding work. 2. Efficiency of operation The Respondent argues that the Employer might affect economics in assigning the disputed work to the Respondent, due to the fact that the Employer's wage scale is higher than that of the Respondent. Otherwise, there is little or no cogent evidence as to whether or not an assignment of the work to the Respondent would promote efficiency in the Em- ployer's operations. 3. Company and industry practice Since 1950 the Employer has hired un- represented employees to perform the disputed work in the San Antonio area . The Employer per- forms approximately half of this work in that area, while the firms which employ employees represented by the Respondent perform the other half. 135 NLRB 1402 'Id at 1410-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Agreements between the Company and Unions The employees engaged in performing the disputed work are represented by the Carpenters when thay work in the shop. However, the current contract between the Employer and the Carpenters specifically excludes them when they perform the disputed work outside the shop. 5. Board certifications On November 20, 1967, the Regional Director for Region 23 issued a Decision and Clarificaton of Bargaining Unit3 in a certified unit of the Em- ployer's production and maintenance employees at Austin, Texas, in which he specifically excluded, inter-alia, from the unit all employees engaged in the outside erection of structural steel, in accord with the terms of an agreement between Carpenters Local No. 14 and the Austin Iron Workers Local 66, reached as part of the hearing in that case, whereby the Iron Workers Local would perform the metal from installation work on roof decking jobs in Austin. 6. Other agreements The record indicates that an informal verbal agreement, antedating the instant hearing by a year and a half, exists between Local Union 66 of the Iron Workers in San Antonio and the Respondent whereby structural steel is to be installed by the Iron Workers and roof decking material by the Sheet Metal Workers. The Internationals of the two Unions did not participate in the agreement. 7. National Joint Board awards The Respondent adduced at the hearing a number of National Joint Board awards, including Green Book awards, of roof decking installation work, to the Sheet Metal Workers in other areas of the United States. There is no evidence of agree- ments among the parties for the submission of work disputes to the National Joint Board. Conclusions Upon the record as a whole, and after full con- sideration of all relevant factors involved, we be- lieve that the assignment of the work in dispute to the employees of the Employer should not be disturbed. We shall therefore determine the dispute before us by awarding the laying corrugated metal sheets of less than 10-guage thickness over struc- tural roof decking members and the welding of the same thereto to the unrepresented employees of General Supply Co., Inc. This determination is limited to the particular controversy giving rise to this dispute. 3 General Supply Co , Inc , Case 23-UC-23, unpublished DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, the National Labor Rela- tions Board hereby makes the following Determina- tion of Dispute: 1. The unrepresented employees of General Supply Co., Inc., are entitled to perform the work of laying corrugated metal sheets of less than 10- gauge thickness over structural roof decking mem- bers and welding them to the members. 2. Local Union No. 67 of the Sheet Metal Work- ers International Association are not and have not been entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require General Supply Co., Inc., to assign the above work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 67 of the Sheet Metal Workers International Associa- tion shall notify the Regional Director for Region 23, in writing, whether they will or will not refrain from forcing or requiring General Supply, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by the Sheet Metal Workers rather than General Supply's unrepresented employees.