Close Insulation Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1458 (N.L.R.B. 1980)

1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Heat and Frost Insula-
tors and Asbestos Workers, Local Union No. 41
and Close Insulation Company, Inc. Case 25-
CD-197
August 27, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING ANI) MEMBI.RS
JENKINS AND TRUI SDAI.E
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Close Insulation Company,
Inc., herein called the Employer, alleging that In-
ternational Association of Heat and Frost Insula-
tors and Asbestos Workers, Local Union No. 41,
herein called the Union or Asbestos Workers, 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 employees represented by the Union
rather than to unrepresented employees employed
by the Employer.
Pursuant to notice, a hearing was held before
Hearing Officer Susan R. Brooke on May 6 and 12,
1980. Counsel for the Employer and for the Union
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-exam-
ine witnesses, and to adduce evidence bearing on
the issues. Neither of the two unrepresented em-
ployees entered a formal appearance or was repre-
sented by counsel, although one of the employees
attended most of the hearing and testified on behalf
of the Employer.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, an Indiana corporation with its principal
place of business in Fort Wayne, Indiana, is en-
gaged in the construction business. During the past
year the Employer had gross revenues in excess of
$500,000 and, during that same period, purchased
goods and materials valued in excess of $50,000 di-
rectly from sources located outside the State of In-
diana. We find that the Employer is engaged in
251 NLRB No. 192
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 ORGANIZATION INVOLVED
The parties stipulated, and we find, that Interna-
tional Association of Heat and Frost Insulators and
Asbestos Workers, Local Union No. 41, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. IHE DISPUTE
A. Background and Facts of the Dispute
The Employer is an insulating contractor en-
gaged primarily in the business of installing thermal
insulation. The bulk of its business consists of pur-
chasing material from suppliers for fabrication and
installation at a jobsite by employees represented
by the Asbestos Workers. In addition to its jobsite
installation, the Employer manufactures several
items in its shop using employees not represented
by any union. One of the items manufactured in the
Employer's shop is metal insulation jacketing, the
subject of the instant dispute. The manufacture of
metal jacketing involves cutting the desired length
of metal on a floor model shear, folding one of the
edges on a break, and rolling the metal to form a
cylindrical shape. The jacketing is then transported
to the jobsite where it is applied to insulated pipe
to protect the insulation from the weather and
other corrosive elements.
Prior to 1978 the Employer, whose jobs do not
require large amounts of jacketing, fulfilled its jack-
eting requirements by purchasing it in finished
form from several manufacturers. The Employer
became dissatisfied with this arrangement because
of problems with regard to the availability and
storage of the jacketing. Consequently, the Em-
ployer decided to manufacture metal jacketing in
its own shop and in 1978 obtained the necessary
equipment. This equipment included a floor break
which folds the metal to form a Pittsburgh or Z
edge, a locking edge which provides a trough to
channel off rain water. Like the other items manu-
factured in its shop, the Employer assigned the
metal jacketing work to its unrepresented employ-
ees. These employees fill the Employer's jacketing
requirements as well as construct jacketing for sale
by the Employer to customers.
Union Business Agent Miller testified that, upon
learning of the Employer's assignment of the dis-
puted work to the unrepresented employees, he
sent a letter to the Employer stating that, unless
the metal jacketing manufactured in its shop was
made by employees represented by the Asbestos
1
ASBESTOS WORKERS, LOCAL UNION NO. 41 1459
Workers, the Union would advise its members not
to install the jacketing. The Employer responded
to the Union's protest by assigning the work to
represented employees on one job, but thereafter
resumed having the jacketing manufactured by the
unrepresented shop employees. Consequently, the
Union advised its members in January 1980 not to
install metal jacketing made in the Employer's shop
by the unrepresented employees. Shortly thereaf-
ter, employees represented by the Asbestos Work-
ers refused to install the metal jacketing at a job in
Decatur, Indiana. On April 10, 1980, the Employer
filed a charge alleging that the Union violated Sec-
tion 8(b)(4)(D) of the Act by encouraging employ-
ees to refuse to handle goods with an object of
forcing the Employer to assign the disputed work
to employees represented by the Union.
B. The Work in Dispute
The work in dispute involves the manufacture of
metal insulation jacketing at the Employer's shop
in Fort Wayne, Indiana.
C. The Contentions of the Parties
The Employer contends that the disputed work
should be assigned to its unrepresented shop em-
ployees, relying on the factors of relative skills,
economy and efficiency of operation, area practice,
and employer assignment and preference. The
Union takes the position that the employees it rep-
resents are entitled to manufacture the metal jack-
eting which is installed by the Employer at jobsites
and sold to employers that have collective-bargain-
ing agreements with the Asbestos Workers. It
maintains that employees represented by the Asbes-
tos Workers possess the skills to manufacture the
jacketing and have traditionally performed that
type of work, and that the collective-bargaining
agreement, Joint Trade Board decisions, and indus-
try practice also favor an award of the work to
employees represented by the Asbestos Workers.
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) of the Act
has been violated and that the parties have not
agreed upon a method for the voluntary adjust-
ment of the dispute.
As noted above, the Union informed the Em-
ployer that it intended to advise its members not to
install metal jacketing unless it was manufactured
by its members in the Employer's shop. The Em-
ployer refused to reassign the work and, after the
Union instructed its members not to install the
jacketing, employees of Close refused to handle the
jacketing at a job in Decatur, Indiana. We there-
fore find that there is reasonable cause to believe
that the Union took this action at the Decatur job-
site with an object of forcing the assignment of the
disputed work in violation of Section 8(b)(4)(D) of
the Act. No party contends and there is no evi-
dence showing that there exists an agreed-upon
method for the voluntary adjustment of this dispute
binding on all the parties. Accordingly, we find
that this dispute is appropriate for resolution by the
Board 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 disputed work after
giving due consideration to various factors. The
following factors are relevant in making the deter-
mination of the dispute before us:
1. Collective-bargaining agreement
The Union contends that the disputed work is
preserved to it by virtue of the fabrication clause in
its collective-bargaining agreement with the Em-
ployer. The clause provides in pertinent part:
This agreement covers . . . preparation, fab-
cation, alteration, application . . . mainte-
nance, finishing, and/or weatherproofing of
cold or hot thermal insulation . . . on either
piping, fittings, valves ....
Our interpretation of the contract language does
not support the Union's claim since the work "fab-
rication" refers to the actual insulation materials
which are applied to the pipe at the jobsite. In ad-
dition, the metal jacketing, which is a protective
covering placed over the insulated pipe primarily
for weatherproofing purposes, is being installed at
the jobsite by represented employees in accordance
with the contract. Therefore, we find that the col-
lective-bargaining agreement does not preserve the
manufacture of metal jacketing to employees repre-
sented by the Union.
2. Economy and efficiency of operations
The record shows that the Employer does not
require large quantities of metal jacketing for its
jobs and that the two unrepresented employees
who manufacture the metal jacketing spend a maxi-
mum of 4 to 6 hours per week on this task. The
Employer's superintendent, Cox, testified that the
work was assigned to the unrepresented employees
because of their availability in the shop and their
access to the necessary equipment. The Employer
does not work on projects large enough to justify
transporting the machinery to jobsites, and repre-
sented employees would have to be paid for the
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time spent traveling between the shop and the job-
site. In addition, a substantial portion of the Em-
ployer's jacketing is required on an emergency
basis, with the jacketing having to be manufactured
and delivered on the day the order is received.
Based on the foregoing, we find that economy and
efficiency of operations favor an award of the dis-
puted work to the unrepresented employees.
3. Employer assignment and preference
Since commencing to manufacture its own metal
jacketing in 1978, the Employer, with one excep-
tion following a protest by the Union, has assigned
the work to its unrepresented shop employees and
has expressed its preference that the disputed work
be performed by those employees. We find that the
Employer's assignment and preference favor an
award of the work to the unrepresented employees.
4. Joint Trade Board determinations
The Union contends that the disputed work was
the subject of two Joint Trade Board decisions
which require assignment of the work to employ-
ees represented by the Asbestos Workers. The
record reveals that the Joint Trade Board proceed-
lngs relied on by the Union are not formal determi-
nations or awards, but are records of first-step
grievance settlements involving another employer
which were reached at regularly scheduled Joint
Trade Board meetings. Neither the Employer nor
its unrepresented employees were parties in either
proceeding and the Joint Trade Board did not for-
mally consider or vote on the matters. According-
ly, we find that these first-step grievance settle-
ments involving the Union and another employer
are not entitled to significant weight in deciding
this dispute.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the Employer's unrepresented shop em-
ployees are entitled to perform the work in dispute
because the Employer's present assignment accords
with its past practice and its preference, and pro-
vides for increased economy and efficiency of op-
eration.
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. The Employer's unrepresented employees are
entitled to perform the work of manufacturing
metal insulation jacketing at the Employer's shop.
2. International Association of Heat and Frost
Insulators and Asbestos Workers, Local Union No.
41, is not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the Em-
ployer to award the above work to its members or
to employees it represents.
3. Within 10 days of the date of this Decision
and Determination of Dispute, International Asso-
ciation of Heat and Frost Insulators and Asbestos
Workers, Local Union No. 41, shall notify the Re-
gional Director for Region 25, 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 award the work in dispute
to its members rather than to the unrepresented
employees.