Sheet Metal Workers Local, 332

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers Local Union No. 332, AFL-CIO' and Lear-Siegler, Inc. - Holly Division, Charging Party and International Chemical Workers Union, Local No. 766, AFL-CIO, Party to Contract. Case 36-CD-49 June 3, 1969 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULI OCH AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed on January 22, 1969, and an amended charge filed on February 11, 1969, by Lear-Siegler, Inc. Holly Division, hereinafter called Lear-Siegler or the Employer, alleging that Sheet Metal Workers Local Union No. 332, AFL-CIO, hereinafter called Sheet Metal Workers, had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Eugene, Oregon, on March 18 and 19, 1969, before Hearing Officer Patrick H. Walker. Employer, Sheet Metal Workers, and International Chemical Workers Union, Local No. 766, AFL-CIO, hereinafter called Chemical Workers, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Employer and Sheet Metal Workers filed briefs in support of their positions. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE FMPLOSER The record discloses that the Employer, an Oregon corporation wholly owned by Lear-Siegler, Inc., a California corporation, is engaged in the sale, servicing, installation, replacement and repair of heating and air-conditioning equipment. The Employer purchased, during the year preceding the hearing, in excess of $100,000 worth of goods and materials which originated outside the State of Oregon and were delivered to it from points directly outside the State of Oregon, or directly from persons who in turn received said goods and materials directly from points outside the State of As amended at the hearing to reflect its correct designation. 176 NLRB No. 41 Oregon. We find that the Employer is engaged in commerce 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. 11. THE I ABOR ORGANIZATIONS INVOLVED The record shows, and we find, that Sheet Metal Workers and Chemical Workers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work at Issue This proceeding arises out of a dispute over whether work involving the installation of heating and air-conditioning equipment , including the installation of prefabricated ducts and vents, should be assigned to members of Sheet Metal Workers or retained by employees represented by Chemical Workers. B. Background and Facts of the Dispute Lear-Siegler employs approximately eight employees at its Eugene, Oregon, location. Its employees, currently represented by Chemical Workers, are designated as working foremen and senior and junior gas-burning equipment installers. Forty percent of the Employer's business is derived from the sale, service, and installation of central heating and air-conditioning equipment. Another 40 percent is derived from the installation of ductless heating equipment owned and leased by Northwest Natural Gas Company. The remainder deals with miscellaneous installation, repair, and rebuilding services. The work in dispute is of the first type. The record establishes that the Employer contracted with the general contractor, Wayne L. Johnson, for the installation of central heating systems and gas piping for water heaters for a 92-unit apartment house, project at 565 Coburg Road, Eugene, Oregon. Pursuant to the terms of this contract, the Employer has commenced the installation of the heating systems and gas piping. Each central heating system is built around a gas furnace which will heat one entire apartment or dwelling unit, normally consisting of three or four rooms. Ordinarily the Employer assigns only one employee to perform the necessary work in each apartment. At times, however, an additional employee is assigned for the purpose of assisting in setting the heavy equipment in place. In addition to setting the furnace in place, the employee cuts, fits, and installs the necessary piping, in each case using the appropriate sheet metal, pipefitting, or testing tools. More specifically, the employee connects and runs a gas pipe from the meter to the furnace and SHEET METAL WORKERS LOCAL 332 373 connects the pipe to the furnace. He also runs a sheet metal vent to the flue, generally through the roof. The prefabricated sheet metal ducts which the employee installs pass the air throughout the dwelling unit. The employee pressure-tests the pipe, purges the line of air, lights the unit, and tests it in operation. On January 22, 1969, while the Employer's employees were engaged in the above-mentioned work functions at the Coburg Road construction site, an individual picketed the construction project with a sign reading, "Lear-Siegler, Inc. do [sic] not have an agreement with Sheet Metal Local 332." Hulse. the Employer's Eugene manager, asked the picket to explain the meaning of the sign and was told by the picket that it was self-explanatory. As a result of the picketing, employees working for other subcontractors stopped work. During the work stoppage, Hulse was ordered to take his men off the job by the general contractor's superintendent, Wardell, in order that the other craft employees could return to their jobs. Hulse acceded to this demand and did not resume work on the job until approximately a week and one-half later, at a date subsequent to the filing of the instant original charge. Crosby, business agent for Sheet Metal Workers, admitted at the hearing that he placed the aforementioned picket upon the advice of his Executive Board. C. Contentions of the Parties The Employer and Chemical Workers argue that the instant employees should retain the work because of economy and efficiency derived from the flexibility in scheduling the work. They further claim that the employees are well qualified and have performed the work in a satisfactory manner and that there is no reason to assign the work to Sheet Metal Workers. In addition, the Employer asserts that the instant dispute is part of an underlying fundamental jurisdictional dispute and that, therefore, the Board's award herein should extend to the installation of similar work throughout Sheet Metal Workers' jurisdiction. In support of its claim that the instant dispute is part of a larger jurisdictional dispute, the Employer points to several prior Board awards dealing with the installation of similar work in the northwest area' and the statement made by Crosby that Sheet Metal Workers would in the future again claim any similar work performed by the Employer within its jurisdiction. Although claiming jurisdiction over the installation of the furnaces and all sheet metal duct work, Sheet Metal Workers are not claiming the gas piping to the furnaces or the electrical hookups that 'Lear-Siegler, Inc. - Holly Division, 174 NLRB No. 4, Siegler Service Co. 169 NLRB No. 118; Northwest Natural Gas Company. 163 NLRB No. 56; Northwest Natural Gas Company, 156 NLRB 1071, and Cascade Natural Gas Corporation , 149 NLRB 1014. may be involved in the installation of such equipment. In support of its claim, Sheet Metal Workers argues that its members can more skillfully and efficiently perform the disputed work and that it has traditionally performed such work. D. Applicability of the Statute In a proceeding under Section 10(k) of the Act, the Board is required to find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. For this purpose, the Board must find evidence in the record that the charged labor organization has engaged in or induced or encouraged a strike, or has threatened, coerced, or restrained any person engaged in commerce, with an object of forcing an employer to assign certain work to employees in a particular labor organization or trade rather than to employees in another labor organization or trade. We find, based upon the foregoing, that there is reasonable cause to believe that Sheet Metal Workers sought to force a reassignment of the disputed work in contravention of the proscription contained in Section 8(b)(4)(D). Accordingly, the 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 relevant factors. As the Board has stated , its award is an act of judgment based upon common sense and experience in balancing such factors . The following factors are relevant in making a determination of the dispute before us. 1. Collective- bargaining agreement: The Employer has had a bargaining agreement with Chemical Workers for approximately 3 years. Pursuant to this agreement , the Employer has assigned employees represented by Chemical Workers to perform all installation work. Sheet Metal Workers has had no contracts with the Employer. 2. Skills of the employees. The members of Sheet Metal Workers receive extensive training and undergo a rigorous examination of their abilities in their specialized field. The record does not establish, however, that these employees possess any particular expertise regarding the installation and testing of the heating units under consideration. Rather, the duties involved in the installation and testing are such that the training and skills of employees represented by Chemical Workers are sufficient to carry out all of 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the requisite operations. These latter employees regularly attend a school of instruction conducted by the Northwest Natural Gas Company and receive specialized on-the-job training . In addition, all the employees in the Employer's Eugene office, with the exception of two men recently hired before the hearing, possess gas fitters' licenses from the city of Eugene, having obtained the licenses after successful completion of written examinations . Furthermore, the Employer is apparently satisfied with the skills of its employees. 3. Efficiency and economy of operations: As discussed above, except for assistance in its placement, the installation of a heating unit requires only one employee. If Sheet Metal Workers were to be assigned to the work, it would be necessary for the different craftsmen to perform specialized operations at different times. The result would be a fragmented operation with increased costs, more complicated scheduling of workers , and more time required to complete the job. 4. Area and industry practice: The area practice is not clearly defined. The Employer has in the past assigned all installation work in the States of Oregon and Washington to employees represented by Chemical Workers. Locals of Chemical Workers have contracts with six gas heating equipment installation companies and two gas distribution companies in the Pacific Northwest. Sheet Metal Workers has contracts with several gas heating companies in the Oregon area. These companies, however, are primarily engaged in plumbing or sheet metal work and only secondarily engaged in heating . Sheet Metal Workers' assertion that an industrywide practice is evidenced by numerous AFL-CIO National Joint Board determinations is inconclusive in light of the fact that there is no evidence establishing that such determinations dealt with the specific kind of work here in question . Moreover, the record fails to establish that either the Employer or Chemical Workers was a party to such disputes. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we believe that the employees of Lear-Siegler who are currently represented by Chemical Workers, rather than sheet metal workers represented by Respondent Sheet Metal Workers, are entitled to the work in dispute . We base this conclusion upon the Employer's assignment of the disputed work to its own employees , the fact that the assignment is consistent with the Employer's past practice and the current bargaining contract, the fact that the employees represented by Chemical Workers possess the requisite skills to perform the work, and that such an assignment will result in efficiency and economy of operations. We shall accordingly determine the dispute before us by awarding all installation of heating equipment, including the fitting of pipe and prefabricated ducts and vents attendant thereto, to those employees represented by Chemical Workers, but not to that Union or its members. In consequence, we shall also determine that Sheet Metal Workers was not and is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the disputed work to its members. Since there is a strong probability that similar disputes may occur in the future, we hold that the determination in this case applies not only to the job in which the dispute arose, but to all similar work done or to be done in Eugene, Oregon, and surrounding counties, within the territorial jurisdictional area of the Sheet Metal Workers, by Lear-Siegler, Inc. Holly Division.' 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 hereby makes the following Determination of the Dispute: 1. Employees of Lear-Siegler, Inc. Holly Division, who are currently represented by International Chemical Workers Union, Local No. 766, AFL-CIO, are entitled to perform the work of installing heating and air-conditioning equipment, including the fitting of pipe and prefabricated ducts and vents attendant thereto, in Eugene, Oregon, and surrounding counties within the territorial jurisdiction of Sheet Metal Workers Local Union, No. 332, AFL-CIO. 2. Sheet Metal Workers Local Union No. 332, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the above work to employees who are represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers Local Union No. 332, AFL-CIO, shall notify the Regional • Director for Region 19 and the Officer-in-Charge for Region 36, in writing, whether 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 work in dispute in a manner inconsistent with the above determination. 'See Northwest Natural Gas Company. 163 NLRB 56.