Millwrights' Local Union No. 1357

MILLWRIGHTS' LOCAL UNION NO. 1357 491 S Millwrights' Local Union No. 1357, United Brother- hood of Carpenters and Joiners of America, affiliat- ed with AFL-CIO and Building Trades Council I and Memphis Publishing Company 2 and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 135 and Local No. 167 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO .2 Cases 26-CD-113 and 26-CD-118 September 22, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Memphis Publishing Company, alleging that Millwrights' Local Union No. 1357, United Brotherhood of Carpenters and Joiners of America, affiliated with AFL-CIO and Building Trades Council, herein called Millwrights, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or re- quiring George R. Hall, Inc., herein called Employer, to assign certain work to employees represented by Millwrights rather than to employees represented by International Association of Machinists and Aero- space Workers, AFL-CIO, District Lodge No. 135, herein called Machinists or District Lodge No. 135, and Local No. 167 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called Iron Workers, respectively. Pursuant to notice, a hearing was held before Hearing Officer Melvin L. Ford on July 1-3, 1975. The Employer, Millwrights, Machinists, and the In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, a party in interest in this pro- ceeding, 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, the Employer and Mill- wrights 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 au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The name of Respondent appears as amended at the hearing. 2 Iron Workers and Memphis Publishing Company, despite adequate no- tice, entered no formal appearances at the hearing. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated to the following facts: The Employer, a corporation with its principal office lo- cated in Cleveland, Ohio, is engaged in business as a contractor. During the 12 months preceding the hearing it purchased and received at the Memphis, Tennessee, jobsite goods and materials valued in ex- cess of $50,000 directly from suppliers located out- side the State of Tennessee. Memphis Publishing Company, a corporation with its principal place of business in Memphis, Tennes- see, is engaged in the printing, distribution, and sale of daily morning and evening newspapers. During the 12 months preceding the hearing it had a gross volume of business in excess of $200,000 and re- ceived at its Memphis, Tennessee, location products valued in excess of $50,000 from points located out- side the State of Tennessee. J. A. Jones Construction Company, a corporation with its principal office in Charlotte, North Carolina, is engaged in the construction business as a general contractor. During the 12 months preceding the hearing it has received at the Memphis, Tennessee, jobsite goods and materials valued in excess of $50,000 directly from points located outside the State of Tennessee. Accordingly, we find that the Employer, Memphis Publishing Company, and J. A. Jones Construction Company are engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Mill- wrights, Machinists, and Iron Workers are labor or- ganizations within the meaning of Section 2 (5) of the Act. III. THE DISPUTE A. Background and Facts Sometime prior to the dispute, Memphis Pub- lishing Company engaged J. A. Jones Construction Company as its general contractor to construct a new addition to its existing facility in Memphis, Tennes- see. Thereafter, Memphis Publishing Company en- tered into a contract with the Employer to install newspaper printing presses and newspaper printing 220 NLRB No. 89 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant equipment, including a conveyor belt system pany in Memphis, Tennessee .4 and related items, within the pressroom and mail- room of the addition to be constructed. Subsequent- ly, upon the commencement of work at the Mem- phis, Tennessee, jobsite, the Employer assigned the work of unloading, rigging, and setting into position the aforementioned equipment to employees repre- sented by Iron Workers and assigned the assembly, leveling, and precision work involved in the installa- tion of such equipment to employees represented by Machinists. The parties stipulated, with respect to Case 26-CD-113, that on or about February 11, 1975, O. K. Robinson, business representative of Mill- wrights, orally informed Maurice C. Moore, project manager for J. A. Jones Construction Company, and William O. Smith, job superintendent for the Em- ployer, that Millwrights claimed the work of install= ing the printing presses at the Memphis Publishing Company jobsite and, thereafter, established a picket in support of that claim. With respect to Case 26-CD-118, the parties stipulated that on or about June 3, 1975, Robinson orally informed both Moore and Smith that Millwrights claimed the work then being performed on the conveyor belt system and related equipment and thereafter established a picket bearing the following legend: The conveyors and other machinery other than printing presses being installed on this job by George R. Hall, Inc. with machinists comes un- der the jurisdiction of Millwrights Local Union No. 1357.3 The parties further stipulated that Millwrights' claims to the work and picketing in support thereof in Cases 26-CD-113 and 26-CD-118, respectively, give the Board reasonable cause to believe that Mill- wrights has violated Section 8(b)(4)(D) of the Act. B. The Work in Dispute The work in dispute consists of the assembly, level- ing, and precision work involved in the installation of newspaper printing presses and newspaper printing plant equipment, including a lap-stream conveyor belt system and related items, within the addition to the existing facility of the Memphis Publishing Com- 3 Subsequent to the filing of the charge in Case 26-CD-I 13, Millwrights disclaimed that portion of the work involving the installation of the newspa- per printing presses being performed at the ,lobsite by machinists and there- after the charge in that case was withdrawn with the approval of the Re- gional Director. However, following the filing of the charge in Case 26-CD- 118, Millwnghts withdrew its disclaimer , whereupon the Regional Director rescinded his prior approval of the withdrawal of the charge in Case 26-CD-113 and ordered the consolidation of Cases 26-CD-113 and 26-CD- 118 for purposes of hearing. C. Contentions of the Parties The Employer and Machinists take the position that the Employer's assignment of the disputed work is consistent with the collective-bargaining agree- ment between the Employer and the International Association of Machinists and Aerospace Workers, AFL-CIO, as well as certain local agreements be- tween the Employer and District Lodge No. 135. The Employer further contends that its assignment is consistent with its past practice and industry prac- tice, and that the factors of relative skills and econo- my of operations favor an award of the disputed work to employees represented by Machinists. The Employer additionally argues that any award herein should not be limited to the work in dispute, but rather should also encompass similar work to be per- formed at the Memphis, Tennessee, jobsite in the near future. Millwrights contends primarily that the factor of area practice favors an award of the work in dispute to employees represented by it. It further argues that, inasmuch as the local agreements between the Em- ployer and Machinists have not been signed by the Employer, the Employer, in effect, has no agreement with Machinists so as to require it to assign the dis- puted work to machinists. Finally, Millwrights con- tends that the Board should make separate awards with respect to the installation of the newspaper printing presses and installation of the conveyor belt system and related equipment, respectively. D. 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 volun- tary settlement of the dispute. As stated above, the parties stipulated that Mill- wrights presented claims for the disputed work to of- ficials of both the Employer and J. A. Jones Con- struction Company and established pickets in support of those claims. The parties further stipulat- ed that Millwrights conduct herein gives the Board reasonable cause to believe that Millwrights has vio- lated Section 8(b)(4)(D) of the Act. Based on the 4 Although Millwrights initially also claimed the work of unloading, rig- ging, and setting into position the newspaper printing presses and conveyor belt system which the Employer has assigned to employees represented by Iron Workers, at the hearing Millwrights conceded that such work fell with- in the jurisdiction of Iron Workers and effectively disclaimed any interest therein. MILLWRIGHTS' LOCAL UNION NO. 1357 493 foregoing, and the record as a whole, we find that Millwrights sought to force or require the assignment of the disputed work to employees represented by it rather than to employees represented by Machinists. Accordingly, we find that reasonable cause exists to believe that Millwrights violated Section 8(b)(4)(D) of the Act. No party contends, and the record discloses no ev- idence showing, that an agreed-upon method for the voluntary adjustment of the instant dispute exists to which all parties are bound. Accordingly, we find that the dispute is properly before the Board for de- termination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors. 1. Certification and collective-bargaining agreements Neither Millwrights nor Machinists has ever been certified as collective-bargaining representative for a unit of the Employer's employees. The Employer has no collective-bargaining agreement with Millwrights. The Employer, however, has a current collective-bar- gaining agreement with the International Association of Machinists and Aerospace Workers which specifi- cally covers the work in dispute. That agreement also contains a provision entitled "Working Rules," which reads as follows: In all instances, the employer shall assume the working rules with regard to hours of work, wage rates, paid holidays, vacations, pensions, insurance, and fringe benefits as provided for in the working rules of the union and/or its affiliat- ed district or local lodge, and whose territory he is working. Pursuant to this agreement Machinists , by letter dat- ed February 5, 1975, provided the Employer with a copy of the working rules adopted in its jurisdiction and, subsequently, by letter dated May 15, 1975, sent to the Employer a revised copy of its working rules. Although the Employer and Machinists apparently did not formally execute an agreement with respect to these local working rules, it is clear that the Em- ployer viewed its collective-bargaining agreement with the International Union as requiring it to assign the disputed work to employees represented by Ma- chinists and to apply such working rules to them. We therefore find that the Employer's agreement with the International Union, when considered in light of the Employer's interpretation of that contract in hir- ing employees represented by Machinists, and partic- ularly in view of the fact that that agreement specifi- cally covers the disputed work, favors the Employer's assignment.' 2. Employer's past practice, assignment, and preference It is undisputed that, since it commenced opera- tions some 20 years ago, the Employer, with the ex- ception of two projects, has consistently assigned the work in dispute to machinists. The Employer's pre- dominant past practice, therefore, favors the Employer's assignment. At the hearing the Employer, through the testimo- ny of its president, expressed its preference that the disputed work be awarded to employees represented by -Machinists. While we do not afford controlling weight to this factor, we find that it tends to favor an award of the disputed work to employees represented by Machinists. 3. Area and industry practice Millwrights presented testimony that it is the gen- eral practice for contractors and companies within the Memphis, Tennessee, and Midsouth areas to uti- lize millwrights to perform the installation and as- sembly of heavy industrial equipment and conveyors, including the installation of printing presses and re- lated conveyor systems . None of these projects, how- ever, appear to have involved the installation of the specific types of newspaper printing presses and con- veyor belt system involved herein . Furthermore, the Employer presented undisputed testimony that it has utilized machinists to perform work similar to that in dispute here on projects in Chattanooga, Knoxville, Kingsport, and Johnson City, Tennessee, and that, for at least the past 14 years, Memphis Publishing Company has exclusively utilized machinists to per- form the work of installing newspaper printing press- es and conveyor systems at its facility . We therefore find that the evidence with respect to area practice is inconclusive. The Employer presented uncontradicted testimony that it, as well as the other three large companies which specialize in the installation of newspaper printing presses and related conveyor systems on a nationwide basis , has consistently utilized machinists to perform the assembly, leveling, and precision work 5International Association of Machinists Local 1366 (Copolymer Rubber and Chemical Corporation), 167 NLRB 916, 917-918 (1967). 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in such projects. We find, therefore, that the factor of industry practice favors an award of the disputed work to employees represented by Machin- ists. 4. Relative skills and economy of operations The Employer presented testimony that the print- ing presses and lap-stream conveyor belt systems in- volved herein are used almost exclusively by large newspaper publishing companies and are signifi- cantly more sophisticated than generally similar types of equipment used in other industries . In this regard, the Employer presented undisputed evidence that the installation of such equipment involves, at least in part, the utilization of specially adapted pre- cision instruments. The Employer, through the testi- mony of its president, expressed its position that, based on its experience on other projects involving work similar to the disputed work, it is persuaded that machinists generally possess the requisite skills to perform such work in a competent manner and, specifically, that it has been satisfied with the work performance of its machinists at the Memphis, Ten- nessee, jobsite. The record also discloses that some, but not all, of the machinists currently employed at the jobsite have had prior experience in the use of the specially adapted precision instruments. Millwrights presented testimony that the printing presses and conveyor system involved herein are not significantly different than those which millwrights have installed in various heavy industrial plants and small newspaper publishing companies in the past. However, Millwrights presents no specific evidence that employees represented by it have in fact in- stalled the particular type of equipment herein in- volved. Millwrights further adduced evidence that employees represented by it have had extensive ap- prenticeship training and experience in the use of precision tools which enable them to work at toler- ances less than one-thousandth of an inch . Further- more, at the hearing the Employer presented no evi- dence that employees represented by Millwrights do not possess the skills necessary to perform the disput- ed work in a competent manner, but rather, through the testimony of its president, merely took the posi- tion that it was unfamiliar with the skills possessed by these employees . We therefore find that the factor of relative skills is not determinative. The Employer contends that the factor of econo- my of operations favors its assignment of the work in dispute. In this regard, the Employer relies primarily on the testimony of its president that an award of the disputed work to employees represented by Mill- wrights "would probably" require it to bring an addi- tional supervisor from its Cleveland, Ohio, office to the Memphis, Tennessee, project in order to provide further training for the millwrights , thereby resulting in delay in the completion of the project . However, inasmuch as the Employer's president conceded at the hearing that he was unfamiliar with the skills pos- sessed by the employees represented by Millwrights, it is unclear as to what degree , if any, an award of the disputed work to millwrights would necessitate addi- tional training for these employees. We find, there- fore, that the factor of economy of operations does not aid us in making a determination of the dispute. F. Scope of the Award At the hearing Millwrights stated its position that the Board should make separate awards of the work involving the installation of the newspaper printing presses and the installation of the conveyor belt sys- tem. The Employer urges that a single award encom- passing all aspects of the work in dispute is appropri- ate. In this regard, the record clearly discloses that the newspaper printing presses , the conveyor belt system, and the related equipment are functionally interrelated and are marked by a high degree of inte- gration both electrically and mechanically . Further- more, the factors which we have discussed above in making our determination of dispute herein are fully applicable to all aspects of the disputed work. Ac- cordingly, we shall make a single award of the work in dispute. The Employer requests that the Board issue an award assigning this general category of disputed work to machinists on the grounds that it has been engaged by Memphis Publishing Company to per- form similar work at the jobsite in the near future, including the removal of certain mailroom equip- ment from the latter's present facility and the instal- lation and integration of that equipment with the equipment currently being installed by the Employer in the new addition, and that a similar dispute is like- ly to recur over such work. We find merit in this contention and, accordingly, our determination will include any similar disputed work done or to be done by the Employer at the Memphis , Tennessee, job- site.' Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved , we conclude 6 Cf. Local 825A, 825B, 825C, 825D, International Union of Operating En- gineers, AFL-CIO (Humble Oil & Refining Company), 195 NLRB 322, 324 (1972); Sheet Metal Workers' International Association, Local Union No 223. AFL-CIO (Centex Winston Corporation), 193 NLRB 406, 408 (1971). MILLWRIGHTS' LOCAL UNION NO. 1357 that the Employer's employees represented by Ma- chinists are entitled to perform the work in dispute. We reach this conclusion upon the facts that such assignment is consistent with the Employer's past practice and is in accord with the interpretation giv- en by the Employer to its current contractual agree- ment with the International Association of Machin- ists and Aerospace Workers, AFL-CIO; such assignment is consistent with industry practice and not clearly inconsistent with area practice; the em- ployees represented by Machinists possess the requi- site skills to perform the work; and the assignment is consistent with the Employer's preference. Accord- ingly, we shall determine the dispute before us by awarding the work in dispute to the Employer's em- ployees represented by Machinists, but not to that Union or its members. The present determination covers the existing jurisdictional dispute and any similar disputed work done or to be done by the Em- ployer at the Memphis, jobsite. 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 pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: 495 1. Employees of George R. Hall, Inc., who are currently represented by International Association of Machinists and Aerospace Workers, AFL-CIO, Dis- trict Lodge No. 135, are entitled to perform the as- sembly, leveling, and precision work involved in the installation of newspaper printing presses and news- paper printing plant equipment, including a lap- stream conveyor belt system and related items, and all other similar work done or to be done by George R. Hall, Inc., at the jobsite of the Memphis Pub- lishing Company, Memphis, Tennessee. 2. Millwrights' Local Union No. 1357, United Brotherhood of Carpenters and Joiners of America, affiliated with AFL-CIO and Building Trades Coun- cil, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require George R. Hall, Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Millwrights' Local Union No. 1357, United Brotherhood of Carpenters and Joiners of America, affiliated with AFL-CIO and Building Trades Council, shall notify the Re- gional Director for Region 26, in writing, whether or not it will refrain from forcing or requiring the Em- ployer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Millwrights rather than to employees represented by Machinists.