Local 89, Sheet Metal Workers

LOCAL 89, SHEET METAL WORKERS 683 Local 89, Sheet Metal Workers International Associa- tion, AFL-CIO and E. H. Sheldon and Company and Local 215, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 25-CD-127 August 3, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Following the filing of a charge by E. H. Sheldon and Company,' hereinafter referred to as the Employer, on March 7, 1972, alleging a violation of Section 8(b)(4)(D) of the National Labor Relations Act, as amended, a hearing pursuant to Section 10(k) of the Act was held before Hearing Officer David R. Friedman on April 5, 6, and 7, 1972. The Employer and the Sheet Metal 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. Thereafter, briefs were filed by the Employer and Sheet Metal Workers. Pursuant to the provisions of 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 Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the, entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE COMPANY The parties stipulated, and we find, that E. H. Sheldon and Company is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED and attaching the superstructures to laboratory counters and bases in the Purdue University Chemis- try Building, Lafayette, Indiana. The fume hood superstructure, which is attached to a base cabinet, is a component section of laboratory furniture. The base cabinet and a soapstone cabinet top are installed first; the fume hood superstructure, which is asbestos, is installed last. After all components are put in place, sheetmetal workers connect the fume hood to the ventilation system. The Employer assigned the work of installing all components of the laboratory furniture to its employees represented by Carpenters. Sheet Metal Workers claims that em- ployees represented by it are entitled to the work of installing the fume hoods but does not claim the work of installing the base cabinets or the soapstone tabletops for the base cabinets. The Employer began sending laboratory furniture to Lafayette in the latter part of 1971. The Employer and Carpenters had an understanding that carpen- ters would install the furniture. Early in the fall, Sheet Metal Workers sought an award of the work from the Employer. As these efforts were unsuccess- ful, Sheet Metal Workers unilaterally requested the National Joint Board to settle the question of the Employer's assignment of the work to Carpenters. On December 3, 1971, the National Joint Board awarded the work to the Sheet Metal Workers. In early February 1972, the Employer signed a contract with Carpenters for installation of all components of the laboratory furniture. Sheet Metal Workers' business agent, Lonnie Allee, told the Employer's installation superintendent, Douglas Barker, that there would be a work stoppage if the Sheet Metal Workers were not allowed to install the fume hoods. On February 22 or 24, Allee told the Employer's representative in a meeting at the jobsite that there could be a picket line, and on February 28, he told the Employer's installation manager, Bryan Fitzger- ald, that he would "shut the job down." In another meeting, on March 2, Allee told Fitzgerald that he would put up an informational picket sign. On March 6, the Sheet Metal Workers picketed the The parties stipulated, and we find, that Sheet jobsite, which continued until March 16. With the Metal Workers and Carpenters are labor organiza- exception of a few carpenters, all trades stayed off tions within the meaning of the Act. the job. The Employer, on March 7, filed the instant III. A. Background THE DISPUTE and Facts Concerning the Dispute The work in dispute concerns the unloading, moving, uncrating, raising, placing, and installing of fume exhaust hoods and fume hood superstructures, 1 The other parties herein are referred to respectively as Sheet Metal Workers and Carpenters charge. The record shows that the Carpenters and the Sheet Metal Workers International Unions are signatory to an April 1, 1971, agreement between the Building and Construction Trades Department, AFL-CIO, and the National Constructors Associa- tion, which provides that questions of work assign- ment be submitted to the National Joint Board for 198 NLRB No. 110 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD settlement of jurisdictional disputes and shall be binding on the parties. Also, on April 1, 1971, Carpenters entered into an agreement with the Associated Building Contractors in Indiana, which includes a reference to the National Joint Board for settlement of jurisdictional disputes. The Employer became signatory to the agreement between Carpen- ters and the Association in early February 1972 when it assigned the disputed work to Carpenters. On March 16, subsequent to the filing of the charge on March 7, the Employer and Carpenters amended the original agreement for the purpose of deleting the jurisdictional clause, which, according to Sheet Metal Workers, requires the Employer to submit work disputes to the National Joint Board. B. Contentions of the Parties Sheet Metal Workers contends that the notice of hearing should be quashed and the complaint dismissed since all parties to this proceeding are bound to abide by the procedures for the settlement of jurisdictional disputes in the building and con- struction industry, and, as the controversy in question has been submitted to the National Joint Board and a decision issued thereon, the complaint should be dismissed. The Sheet Metal Workers further claims that, if the Board proceeds to make a determination of the dispute, it should give great weight to the decisions of the National Joint Board regarding the assignment of the disputed work. It further claims that it has installed all types of fume hoods throughout the area and is more qualified to perform the work. The Employer contends that all phases of fume hood installation should be performed by carpenters for the same reasons found controlling by the Board in Local 299, Sheet Metal Workers International Association, AFL-CIO (Metalab Equipment Co.), 173 NLRB 1329, namely: (1) the work assignment is consistent with the past practice of the Employer, and is not inconsistent with area practice, of assigning the installation of the entire unit to the carpenters ; (2) the assignment of the hood installa- tion to the carpenters who install all the other component sections of the furniture makes for greater efficiency ; (3) the hood superstructures are attached to the other furniture in the laboratory as integral units ; (4) the work involves the basic skills of carpentry ; and (5) the handtools necessary to perform the work are those of the carpenter , not the sheetmetal worker. The Employer contends that it is under no obligation to submit this dispute to the National Joint Board and that there is no contractual obligation of any kind which supports the Sheet Metal Workers contention that it has contractually bound itself to abide by the procedures for settle- ment of jurisdictional disputes before the National Joint Board. C. Applicability of the Statute Before the Board may proceed with a determina- tion of 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, and that there is no agreed-upon method for the voluntary adjustment of the dispute. The record testimony establishes that in early February 1972, the Sheet Metal Workers business agent, Lonnie Allee, told the Employer's installation superintendent, Douglas Barker, there would be a work stoppage if the Sheet Metal Workers was not assigned the disputed work; on February 22 or 24, he told the Employer's representatives that there would be a picket line; on February 28, he told the Employer's installation manager, Bryan Fitzgerald, that he would "shut the job down"; and, the Sheet Metal Workers commenced picketing at the jobsite on March 6 and continued picketing until March 16. On these facts, we are satisfied that there is a reasonable cause to believe that the Sheet Metal Workers threatened to and did strike and that an object of such action was to force the Employer to assign the disputed work of installing the fume hoods to individuals represented by Sheet Metal Workers rather than to employees represented by Carpenters. Contrary to the contention of Respondent, the record does not clearly establish that the Employer and Carpenters, pursuant to their collective-bargain- ing agreement, are bound to the National Joint Board. The only reference to the Joint Board is in section 15 of the local Lafayette contract between ABC and the Carpenters, which states that "All work belonging to carpenters, covered in the Constitution and laws of the United Brotherhood of Carpenters and Joiners of America, set out in the Trade Autonomy of the Constitution, shall be retained by Local Union No. 215, unless by a decision of the National Joint Board for Settlement of Jurisdictional Disputes shall rule such work belongs to another affiliated craft [sic]." This language, in our opinion, does not clearly and unambiguously require a relinquishment of the Employer's discretion over work assignments by imposing an absolute require- ment that it defer to Joint Board awards adversely affecting Carpenters. Instead, that clause is suscepti- ble to an interpretation that it was merely designed to protect the Employer against claims by Carpenters should the Employer unilaterally decide to recognize a Joint Board award which is contrary to Carpenters LOCAL 89, SHEET METAL WORKERS interest. It does not by its terms require that either party submit a particular jurisdictional dispute to the National Joint Board for resolution but only, as indicated, that Carpenters contractually protected jurisdiction may be circumscribed by some past or future Joint Board awards. In these circumstances, we conclude the parties have not contractually bound themselves to submit all jurisdictional dis- putes to the Joint Board, and we therefore find that this dispute is properly before the Board for determination.2 On the basis of the entire record in this case, we find 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 determi- nation. D. Merits of the Dispute Neither Sheet Metal Workers nor Carpenters has been certified by the Board with respect to any employee involved in the instant proceeding. The Employer has a nationwide contract with Carpenters under which it has agreed, inter aha, to recognize its jurisdictional claims in the locality in which any work of the Company is being done. Sheet Metal Workers, however, has advanced no contractual claim to the disputed work. The record testimony shows that the Employer has consistently assigned work of the type in dispute to carpenters. The evidence indicates that the Employer, a nationwide operation, consistently does so in spite of Joint Board decisions to the contrary, and no evidence was adduced showing that the Employer had ever willingly assigned the disputed work to sheetmetal workers. The skills required to perform the disputed work appear to be skills of the carpenter and not those of the sheetmetal worker. The installation of the fume hood requires that the base cabinet, to which it is attached, be leveled and installed according to customary carpentry methods; i.e., leveling, screw- ing, bolting, and gluing. In view of these methods of installing the fume hoods, it would be more efficient if the base cabinet and the fume hood were installed at the same time, by a single crew of carpenters, instead of splitting the overall operation between two crafts. Moreover, the tools required in the installa- tion process are those of the carpenters. E. Conclusions as to Merits of Dispute Upon consideration of all pertinent factors in the 685 entire record, we shall not disturb the Employer's assignment of the disputed work to carpenters. Sheet Metal Workers has no contractual claim to the work. The work requires the skills and tools of carpenters. The Employer has consistently assigned work of the type in dispute to carpenters, is satisfied with the results, which show an efficiency and economy of operation, and desires no change. Accordingly, we shall determine the existing jurisdictional dispute by deciding that carpenters represented by Carpenters, rather than sheetmetal workers represented by Sheet Metal Workers, are entitled to the work of unload- ing, moving, uncrating, raising, placing, and install- ing fume exhaust hoods and fume hood superstruc- tures and of attaching the superstructures to labora- tory counters and bases. In making this determina- tion, we are awarding the work in question to employees represented by Carpenters, but not to Carpenters or its members. The present determina- tion 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Carpenters who are represented by Local 215, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work of unloading, moving, uncrating, raising, placing, and installing fume exhaust hoods and fume hood superstructures and of attaching the superstructures to laboratory counters and bases in the Purdue University Chemistry Building, Lafayette, Indiana. 2. Local 89, Sheet Metal Workers International Association , AFL-CIO, is not entitled , by means proscribed by Section 8(b)(4)(D) of the Act, to force or require E. H. Sheldon and Company to assign the work in dispute to employees represented by the aforesaid Union. 3. Within 10 days of the date of this Decision and Determination of Dispute, Local 89, Sheet Metal Workers International Association , AFL-CIO, shall notify the Regional Director for Region 25, in writing, whether or not it will refrain from forcing or requiring E. H. Sheldon and Company, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to sheetmetal workers rather than to carpenters. 2 See , e g , Sheet Metal Workers Union, AFL-CIO, Local No 4 (Varner Construction Company, Inc), 198 NLRB No 17