Sheet Metal Wkrs. Local 85

SHEET METAL WKRS. LOCAL 85 Sheet Metal Workers Local Union No. 85 and Kewaunee Scientific Equipment Corporation and Local Union No. 225, United Brotherhood of Carpenters and Joiners of America , AFL-CIO. Case 10-CD-241 August 8, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge and amended charge filed by Robert L. Thompson on behalf of Kewaunee Scientific Equipment Corporation (hereafter Kewau- nee or Employer) alleging that Sheet Metal Workers Local Union No. 85 (hereafter Sheet Metal Workers) violated Section 8(b)(4)(i) and (ii)(D) of the Act. A hearing was held on April 17, 1972, before Hearing Officer Robert C. Batson. All parties 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. Thereafter, Kewaunee filed a brief in support of its position. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER All parties stipulated that Kewaunee Scientific Equipment Corporation, a Delaware Corporation having places of business in Adrian, Michigan, and Statesville, North Carolina, is a specialty contractor engaged in the manufacture, sale, distribution, and installation of scientific laboratory furniture and equipment. It operates in all 50 States and has a dollar volume of business of approximately $28 million per year. The parties have further stipulated, and we find, that Kewaunee is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdic- tion herein. t Britt denies this event and asserts that some time after March 10, 1972, the date of an AFL-CIO National Joint Board for the Settlement of Jurisdictional Disputes award, he notified the Carpenters and Kewaunee of II. THE LABOR ORGANIZATIONS INVOLVED 771 All parties stipulated, and we find, that Sheet Metal Workers Local Union No. 85 and Local Union No. 225, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (hereafter Car- penters), are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of Dispute Beers Construction Company, general contractor for the Anatomy and Physiology Building Project at Emory University in Atlanta, Georgia, subcontracted the manufacture and installation of laboratory equipment to Kewaunee. Consistent with its nation- wide and area practice, Kewaunee assigned the installation of said equipment, including fume exhaust hoods, to carpenters. According to the testimony of Kewaunee's installa- tion supervisor, W. C. Murray, he was approached in the basement of the anatomy building on March 6, 1972, by the Sheet Metal Workers business agent, Melvin R. Britt, accompanied by the project job steward and a superintendent for Beers Construction Company. Britt allegedly asked Murray whether he was "going to set those hoods" to which Murray responded affirmatively. Britt then warned that if he did, "there would be a picket put on the job." 1 Murray further testified that when he began setting the hoods with carpenters 1 month later on April 6, 1972, he was told by Britt to stop or else there would be a picket. At approximately 11:30 a.m. on April 6, a single picket appeared with a sign stating that Kewaunee was "unfair" to the Sheet Metal Workers. As soon as the picket appeared, all painters, electricians, and plumbers left the job. The picket remained for the duration of the working day but failed to reappear. At the hearing, Britt, in referring to the installation of the fume exhaust hoods, admitted that the picket was designed "to get the work." B. The Work in Dispute The disputed work involves the "handling and installing" of fume exhaust hoods at the above- mentioned jobsite. Testimony indicates that "han- dling and installing" includes the unloading of the hoods from trucks, moving the hoods into the assigned building, uncrating them and then raising, fitting, and securing them to a hood base which has the award, but did not threaten to strike or caution that there would be trouble. 198 NLRB No. 100 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD already been attached to a floor cabinet . The cabinet, hood base, and fume hood then form a single, integrated unit . Sheet Metal Workers acknowledges that installation of the cabinets and hood bases has been properly assigned to carpenters. C. The Contentions of the Parties The Sheet Metal Workers asserts that the disputed work should be assigned to its members on the basis of area and nationwide practice . In support of its contention, primary reliance is placed on some 200 National Joint Board awards which the parties stipulated had been made to the Sheet Metal Workers since 1964. Said stipulation, however, also indicated that in some instances the parties were not bound by the awards and consequently the awards did not reflect to what extent the Sheet Metal Workers actually performed the work. In addition, the Sheet Metal Workers relies on a National Joint Board decision in the instant case dated March 10, 1972, wherein the disputed work was assigned to its members. Reliance is placed on this award even though the record discloses that Kewaunee had never agreed to be bound by such award. Kewaunee and the Carpenters , on the other hand, contend that all phases of fume exhaust hood handling and installation should be performed by carpenters for essentially the same reasons that were advanced and found controlling by the Board in Local Union No. 80, Sheet Metal Workers' Interna- tional Association, AFL-CIO (Speaker & Associates, Inc.), 190 NLRB No. 64; Local 299, Sheet Metal Workers' International Association, AFL-CIO (Meta- lab Equipment Co.), 173 NLRB 1329; and Local 408, Sheet Metal Workers' International Association, AFL-CIO (Metalab Equipment Co.), 149 NLRB 763. See also Local Union No. 80, Sheet Metal Workers' International Association, AFL-CIO (Norlab, Corp.), 191 NLRB No. 87. Briefly, it is contended that (1) Kewaunee has a longstanding nationwide practice, which is in conformity with area and industry practice, of assigning the installation of the entire unit to carpenters ; (2) fume exhaust hoods are installed in the same manner as other related laboratory furniture assigned to carpenters without question, and consequently the assignment of the entire fume exhaust hood installation to carpenters would be more economical and efficient by avoiding what would otherwise be a two-step operation; (3) the hoods are tied into and attached to the other furniture in the laboratory as integral units ; (4) since the disputed work is in the nature of installation rather than fabrication, the work requires the basic skills of carpentry-minute leveling, the adjusting and aligning of sashes and doors, refinishing dam- aged or tarnished surfaces , and leaving the complet- ed furniture in a highly finished condition ; (5) the handtools necessary to perform the work, including 4-foot levels, screwdrivers, bolts, glue, putty knives, and pry bar, are those of carpenters rather than sheet metal workers; and (6) carpenters have extensive experience in the installation of such equipment. Kewaunee and the Carpenters further contend that, although neither the Sheet Metal Workers nor the Carpenters enjoy National Labor Relations Board certification, Kewaunee executed a national contract with the Carpenters, currently in effect, requiring the Company to honor the jurisdictional claims of the Union. Finally, as indicated above, it is asserted that neither Kewaunee nor the Carpenters is subject to any voluntary adjustment of this dispute by the National Joint Board. D. Applicability of the Statute The charges allege violations of Section 8(b)(4)(i) and (ii)(D) of the Act. The record shows that on March 6, 1972, a claim was made for the disputed work by the Sheet Metal Workers accompanied by a threat to picket the jobsite unless the disputed work was assigned to it. On April 6, 1972, the threat to picket was reiterated and a picket was placed on the jobsite for approximately 4 to 5 hours. The picket was admittedly intended to "get the work." As a result of the picketing, painters, electricians, and plumbers withheld their services. The record indicates that, although the Sheet Metal Workers submitted the instant dispute to the Nation- al Joint Board, Kewaunee has not agreed to be bound by such awards. Based on the entire record, including the admission of the Sheet Metal Workers that it picketed in order to acquire the disputed work, we conclude that there is reasonable cause to believe that there has been a violation of Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determi- nation. E. Merits of the Dispute 1. Certification and collective-bargaining agreements Neither the Sheet Metal Workers nor the Carpen- ters has been certified by the National Labor Relations Board with respect to any employee involved in the instant proceeding. While the Sheet Metal Workers has advanced no contractual claim to the work in dispute, the Employer does have a contract with the Carpenters International pursuant to which it must recognize the jurisdictional claims of SHEET METAL WKRS. LOCAL 85 that union in any locality in which the Employer performs work. 2. Company and industry practice The record indicates that Kewaunee's nationwide policy is to assign the disputed work to carpenters regardless of National Joint Board awards to the contrary. Kewaunee has never assigned the work in question in the first instance to sheetmetal workers although there have been a few occasions in which Kewaunee has involuntarily assigned the work to composite crews following threats or actual picketing by the Sheet Metal Workers. In addition, there is testimony that Kewaunee's five major competitors in the Alabama-Georgia- Tennessee area also have a uniform policy of assigning the disputed work to carpenters. 3. Relative skills The skills required to perform the disputed work appear to be traditional skills of carpenters, includ- ing leveling, screwing, bolting together, and gluing the fume exhaust hoods to the hood base. In addition, unlike the sheetmetal workers, carpenters possess all the tools, including 4-foot levels, required for the proper installation of the fume exhaust hoods. 4. Efficiency and economy of operation The factors of efficiency and economy favor assignment of the disputed work to carpenters. First, the fume exhaust hoods are installed in the same manner as the rest of the laboratory furniture, including the cabinets and hood base, already installed by carpenters. By assigning the entire fume exhaust hood installation to carpenters, Kewaunee avoids the costly two-step operation which would accompany an assignment to sheetmetal workers. Second, by assigning the work to carpenters, Kewaunee benefits by the constant presence of carpenters on the jobsite. Since carpenters are on the site at all times, an assignment to them avoids the necessity of Kewaunee hiring and transporting a crew of sheetmetal workers each and every time a truckload of hoods is delivered or each time construction has reached the stage where another hood is to be set. This consideration becomes particularly important in view of testimony that truck deliveries are made on a somewhat irregular schedule and that, pursuant to instructions from the general contractor, fume exhaust hoods are installed each time a particular room is ready to accomodate 2 Local 408, Sheet Metal Workers' International Association, AFL-CIO (Metalab Equipment Co.), supra; Local 299, Sheet Metal Workers' Interna- tional Association, AFL-CIO (Metalab Equipment Co.), supra; Local Union 773 them rather than all at a single time. Moreover, the sheetmetal workers would have to be paid for a minimum of 4 hours even in situations where they installed only one fume exhaust hood-a 1-hour project. Finally, the experience required is obviously possessed by carpenters since carpenters are request- ed by Kewaunee each time such installation work is necessary. 5. Action of the National Joint Board Since the Employer has not agreed to be bound by National Joint Board awards, the Board's award of the work involved in the proceeding is not control- ling. CONCLUSIONS Based on the entire record, and after full considera- tion of all relevant factors, we shall not disturb the Employer's assignment of the disputed work to carpenters. The Sheet Metal Workers has no contrac- tual claim to the work; the assignment is consistent with the Employer's and industry practice; and the assignment best utilizes the relative skills involved and provides for maximum efficiency and economy of operations. Accordingly, we shall determine the existing jurisdictional dispute by deciding that carpenters, represented by the Carpenters, rather than sheetmet- al workers, represented by the Sheet Metal Workers, are entitled to the work of handling and installing fume exhaust hoods. In making this determination, we are awarding the work in question to employees represented by the Carpenters, but not to the Carpenters or its members. SCOPE OF THE DETERMINATION The Employer, in its brief, requests that the Board fix the scope of its award nationwide. Citing prior Board decisions involving installation of fume exhaust hoods,2 plus admissions from local union officials that their demands for the work in the instant proceeding were made pursuant to the nationwide claims of their respective International organizations, the Employer suggests that "[o]nly the broadest possible award is commensurate with the dispute facing Kewaunee." A nationwide award in this proceeding would necessarily be binding on the Sheet Metal Workers' International, an organization which was not official- ly joined as a party. Since it is the Board's policy not No. 80, Sheet Metal Workers' International Association, AFL-CIO (Speaker & Associates, Inc.), supra; Local Union No. 80, Sheet Metal Workers' International Association, AFL-CIO (Norlab Corp.), supra. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to issue a 10(k) award against an organization not officially joined as a party,3 our award will apply only to the two local unions involved herein. However, in circumstances such as the present where there is an indication that the dispute is likely to recur, it has been the Board's policy to issue an award broad enough to encompass the geographical area in which an employer does business and the jurisdictions of the competing unions coincide.4 Therefore, our determination will cover assignment of the disputed work in the area where Kewaunee operates and the geographical jurisdictions of Sheet Metal Workers Local Union No. 85, and Local Union No. 225, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, coincide. 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 Dis- pute. 1. Carpenters who are represented by Local Union No. 225, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work of handling and installing fume exhaust hoods on work performed by Kewaunee Scientific Equipment Corporation, wherever the jurisdictions of Local Union No. 225, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Sheet Metal Workers' Local Union No. 85 coincide. 2. Sheet Metal Workers Local Union No. 85 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 sheetmetal workers who are represented by the Sheet Metal Workers. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers Local Union No. 85 shall notify the Regional Director for Region 10, in writing, whether it will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than to employees represented by the Carpenters. 3 Laborers ' International Union of North America, Local Union #576, 4 Local 299, Sheet Metal Workers' International Association, AFL-CIO AFL-CIO (Franke Foundation Co), 197 NLRB No 64 (Metalab Equipment Co ), supra, 1332