Sheet Metal Workers, Local 416

SHEET METAL WORKERS, LOCAL 416 719 Sheet Metal Workers International Association, Local No. 416, AFL-CIO; United Brotherhood of Carpenters and Joiners of America, Local Union No. 836, AFL-CIO; International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 498, AFL-CIO' and Hough Manufacturing, Inc. and United Furniture Workers of America Local 801 , AFL-CIO. Case 30-CD-71 March 15, 1977 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, PENELLO, AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , follow- ing a charge filed by Hough Manufacturing, Inc., herein called Hough or the Employer, alleging that the Sheet Metal Workers International Association, Local No. 416, AFL-CIO, herein called the Sheet Metal Workers ; United Brotherhood of Carpenters and Joiners of America, Local Union No. 836, AFL- CIO, herein called the Carpenters ; and International Association of Bridge , Structural and Ornamental Iron Workers, Local Union No. 498, AFL-CIO, herein called the Iron Workers , herein collectively called the Respondents, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by United Furniture Workers of America Local 801, AFL-CIO, herein called the Furniture Workers. Pursuant to notice, a hearing was held before Hearing Officer George Strick on October 20, 1976. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues . Thereafter, the Employer filed a brief which has been duly considered. 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 proceeding, the Board makes the following findings: 1 The names of the parties herein are set forth as amended at the hearing to reflect their correct designations 228 NLRB No. 83 I. THE BUSINESS OF THE EMPLOYER The parties2 stipulated, and we find, that the Employer, a Connecticut corporation with its princi- pal place of business in Janesville, Wisconsin, is engaged in the manufacture of movable door partitions. During the past year, the Employer sold goods and materials to customers outside the State having a value of $50,000. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Sheet Metal Workers, the Carpenters, the Iron Workers, and the Furniture Workers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The parties stipulated to incorporate and make a part of the record herein the transcript and exhibits in the 10(1) proceeding before the United States bistrict Court for the Eastern District of Wisconsin which involved the same issues and parties. The dispute arose out of the construction of a large addition to Hough's-Janesville manufacturing plant. The outside structural work was being performed by contractors and subcontractors whose employees are members of various building trades unions. The inside work, including the disassembling and clean- ing of paint booths, the assembling of support structures for paint ovens (including the installation of panels., the assembling of support structures for an overhead track system, and the installation of machines and equipment (including leveling and bolting), was being done by Hough's own employees. Hough's Janesville factory workers are represented by the Furniture Workers. Ten of the factory employees had been newly hired and were not union members; however, the contract between the Furni- ture Workers and the Employer provides that employees must become union members at the expiration of the 45-day probationary period. On September 13, 1976, Hough factory employees began putting up paint ovens in the new addition. The next day, Billy Juno, the business agent of the Sheet Metal Workers, approached Jim Zopolos, the vice president of Hough, and inquired about the work being done in the addition. Juno asserted that 2 The Furniture Workers did not enter an appearance at the hearing and hence is not a party to the stipulations herein. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part of the work was sheet metal work and that Hough was taking work away from his people. Zopolos said that Hough could not afford the Sheet Metal Workers, and that Hough's own employees would do the work. In a telephone conversation on September 15, Juno again made a claim to Zopolos that Hough employ- ees were doing his Union's work. Juno suggested that Zopolos contact Kepp Plumbing to try to work out a compromise. Zopolos then asked about putting 1 sheet metal worker on the job for each 10 Hough employees. Juno replied that this would not be enough. Zopolos then contacted Kepp and was told that Juno wanted 50 percent of the workers on the jobsite to be members of the Sheet Metal Workers. Zopolos rejected the proposal and told Kepp that the Hough employees had been pulled out of the new wing at noon that day and therefore there should be no further trouble. Juno again telephoned Zopolos on Friday, Septem- ber 17 . According to Zopolos, Juno stated that a picket line would go up on the following Monday to protest the fact that work was going on in the building that should be done by his Union, and that he had reason to believe that other trades would honor the picket line. Juno admits to notifying Zopolos of the Sheet Metal Workers intention to picket. However, he claims to have stated that the purposes of the picketing were to inform other construction workers that the people doing sheet metal work were not members of the building trades unions and to compel Hough to pay Sheet Metal Workers wages to its employees who were perform- ing sheet metal work . Juno further claims that since September 17 he has abandoned the attempt to persuade Hough to allocate the sheet metal work to members of his Union. Later that same day, Zopolos spoke to George Chabucos of the Iron Workers. Chabucos suggested that the picketing might be avoided if Hough employees did not work in the new addition until after the building had been enclosed and turned over to Hough. Zopolos replied that the Hough employees already had been pulled out of the new section. Picketing did not begin on Monday, September 20, as had been threatened. The next week, however, Hough employees resumed work in the new section of the plant. On September 28, the Respondents began picketing the Hough plant. The Iron Workers picket signs contained the following language: "Hough Mfg. is working the job with labor receiving less than prevailing Iron Workers Local Union 498 AFL-CIO rates this sign is not directed at the employees' of this Co. or the employees of any other employer serving this job but solely at the public." The wording for the Carpenters and Sheet Metal Workers was identical, with the exception that the name of the respective Union was inserted in place of the Iron Workers. Some employees of Hough and of contractors and subcontractors honored the picket line. The picketing continued until the district court issued the 10(1) injunction on October 19. B. The Work in Dispute The work in dispute involves the installation of various production equipment and structures in the new addition to the Janesville plant. C. The Contentions of the Parties The Respondents contend that the record does not reveal a present jurisdictional dispute cognizable under Section 10(k) of the Act and that, therefore, the notice of hearing should be quashed. The Respondents take the position that, although the Sheet Metal Workers did claim some of the work in dispute up until September 17, the Sheet Metal Workers has not claimed the work thereafter and does not presently claim it and that the Carpenters and Iron Workers have never claimed, and do not presently claim, the work. The Respondents further claim that the picketing was for the purpose of maintaining their wage standards and not for a purpose proscribed by Section 8(b)(4)(D).3 The Employer takes the position that the dispute is properly before the Board for determination under Section 10(k) of the Act and that the record establishes reasonable cause to believe that Respon- dents have engaged in conduct violative of Section 8(b)(4)(D) of the Act. The Employer further con- tends that the work in issue properly was assigned to its own employees represented by the Furniture Workers. The Furniture Workers did not appear at the 10(1) injunction proceeding or the 10(k) hearing and has not entered an appearance before the Board. 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. The Respondents deny that their picketing of Hough was for purposes violative of Section 8(b)(4)(D) and contend that the object of their picketing was the protection of their wage rates. While there is evidence supporting the assertion that 3 The Sheet Metal Workers additionally claims that a purpose of the picketing was to obtain recognition as the representative of the Hough employees doing sheet metal work. SHEET METAL WORKERS, LOCAL 416 a purpose of the picketing was the preservation of their wage standards, the Board must still consider whether an object of the picketing-among possible multiple objects sought by the Respondent-was to force or require Hough to reassign the work from its own employees, represented by the Furniture Work- ers, to members of the Respondent Unions. The evidence establishes that Billy Juno of the Sheet Metal Workers claimed the work in dispute in conversations with Zopolos on September 14, 15, and 17, and threatened to picket to protest the fact that Hough employees were doing his Union's work. There is further evidence that the business agents of the Respondent Unions claimed the disputed work at a meeting on September 28 with representatives of the Furniture Workers, and that Chabucos told one of the building contractors on September 30 that the picketing was occurring because work was being done that "belonged to Iron Workers." Moreover, Juno's own affidavit states that: "Prior to September 17, 1976, I attempted to persuade Hough to allocate that work to other workers represented by Local 416. When Hough refused, I decided to do the second best thing and so informed Hough. I told them we would picket to inform other construction workers that the people doing sheet metal work were not members of construction unions." On this same record the United States district court found reasonable cause to believe that an object of the picketing was to force the assignment of the disputed work from Hough's own employees to members of the Respondent Unions. We agree, and, accordingly, we find that there is reasonable cause to believe that the Respondents engaged in conduct violative of Section 8(b)(4)(D) and that the dispute is properly before the Board for determination under Section 10(k) of the Act.4 E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors .5 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.6 The following factors are relevant in making the determination of the dispute before us: 4 In view of the above, we hereby deny the Respondents' motion to quash. 5 N.L.R B v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 (1961). 721 1. Company practice The record clearly establishes that it has been the longstanding practice of Hough to assign the work in question to its factory employees. 2. Skills, economy, and efficiency of operation The record indicates that the Hough employees possess the necessary skills to perform the disputed work and that Hough is satisfied with their perfor- mance. Moreover, Hough strongly favors an award of the work to its own employees for reasons of efficiency, economy, and continuity of its work force. Conclusion Upon the record as a whole, and after full consideration of all relevent factors involved, we conclude that employees who are represented by the Furniture Workers are entitled to perform the work in dispute. We reach this conclusion relying on company practice and skills, economy, and efficiency of operation. In making this determination, we are awarding the work in question to employees who are represented by the Furniture Workers, but not to that Union 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 th National Labor Relations Act, as amended, and up n the basis of the foregoing findings and the entire record in this proceeding, the National LaborlI Relations Board makes the following Determination of Dispute: 1. Employees of Hough Manufacturing, Inc., who are represented by United Furniture Workers of America Local 801, AFL-CIO, are entitled to perform the installation of various production equipment and structures in the new addition to the Janesville plant. 2. Sheet Metal Workers International Associa- tion, Local No. 416, AFL-CIO; United Brotherhood of Carpenters and Joiners of America, Local Union No. 836, AFL-CIO; International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 498, AFL-CIO, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Hough Manufacturing, Inc., to assign the disputed work to employees represented by those labor organizations. 6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A Jones Construction Company), 135 NLRB 1402 (1962). 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers International Association , Local No. 416, AFL-CIO; United Brotherhood of Carpenters and Joiners of America, Local Union No. 836, AFL-CIO; Interna- tional Association of Bridge, Structural and Orna- mental Iron Workers, Local Union No. 498, AFL- CIO, shall notify the Regional Director for Region 30, in writing, whether or not they will refrain from forcing or requiring the Employer, by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner consistent with the above determination.