Local 110, Sheet Metal Workers Int'l Assn., Etc.

National Labor Relations Board - Board Decisions

Jul 30, 1963

143 N.L.R.B. 947 (N.L.R.B. 1963)

LOCAL 110, SHEET METAL WORKERS INT'L ASSN., ETC. 947
(d) Notify the Regional Director for the Eighth Region , in writing , within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order what steps have been taken to comply herewith.?
7In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT encourage membership of any employee in any labor organiza-
tion by discharging or laying off any employee , or in any other manner discrim-
inating against any employee in regard to hire , tenure of employment, or any
term or condition of employment , except as authorized by Section 8(a)(3) of
the Act.
WE WILL NOT interfere with , restrain , or coerce employees in any manner,
in connection with the exercise of the right to self -organization , to form labor
organizations , to join or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment , as authorized in Section 8(a) (3) of the Act.
WE WILL offer Orville Williams immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority
or other rights and privileges , and make him whole for any loss of pay suffered
by reason of our discrimination against him.
AMERICAN BRIDGE DIVISION, UNITED STATES
STEEL CORPORATION,
Employer.
Dated---- --------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from date of posting and
must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland , Ohio, 44115, Telephone No. Main 1-4465
if they have any question concerning this notice or compliance with its provisions.
Local 110, Sheet Metal Workers International Association, AFL-
CIO, and its Agents Allen Board and Randolph Heyser and
Brown and Williamson Tobacco Corporation, Charging Party
and Lodge 681, International Association of Machinists, AFL-
CIO, Party to the Dispute . Case No. 9-CD-64. July 30, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, following the filing of charges under Section
8 (b) (4) (D) of the Act. A hearing was held before Donald G. Logs-
don, hearing officer, on April 1, 2, and 3, 1963. All parties who
143 NLRB No. 99.
717-672-64-vol. 143-61
948 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
appeared at the hearing were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence
bearing upon the issues. The rulings of the hearing officer made at
the hearing are free from prejudicial error and are hereby affirmed.
Briefs were filed by the Charging Party and the Party to the Dispute
and have been duly considered.
Upon the entire record in the case, the Board 1 makes the following
findings :
1. Brown and Williamson Tobacco Corporation (herein called the
Company) is a Delaware corporation engaged in the manufacture of
cigarettes and smoking tobacco at its plant located at 1600 West Hill
Street, Louisville, Kentucky. During the calendar year of 1962, in
the regular course of business, it caused goods, valued in excess of
$1 million, to be brought into the State of Kentucky, and shipped
from its plant to points outside the State of Kentucky goods valued
in excess of $1 million.
We find that the Company is engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
2. Local 110, Sheet Metal Workers International Association, AFL-
CIO, herein called Sheet Metal Workers or Respondent, and Lodge
681, International Association of Machinists, AFL-CIO (herein called
Machinists, or IAM), are labor organizations within the meaning of
Section 2 (5) of the Act.
3. The dispute.
A. Facts
Conflicting claims for certain work assignments exist at the Louis-
ville plant of the Brown and Williamson Tobacco Corporation. The
work in dispute involves maintenance functions at the plant. Ma-
chinists have been assigned this work for many years and are pres-
ently doing it. The specific jobs are: (1) angle iron fabrication of
structures and framework in connection with sheet metal work;
(2) installation of hanging fans, industry exhaust fans, volume fans,
window exhaust fans, and air-conditioning blowers; (3) installation
and removal of automatic louvres installed in connection with win-
dow exhaust fans; (4) welding by the electric arc method or oxy-
acetylene torch where used in connection with sheet metal work ;
(5) repair and modification of cigarette trays. Both the IAM and
Sheet Metal Workers contend that the job assignments should go to
employees represented by them.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Rodgers and Leedom].
LOCAL 110 , SHEET METAL WORKERS INT 'L ASSN., ETC. 949
Both unions have been parties to collective -bargaining contracts
with the Company for many years . 2 Neither has ever been certified.'
The most recent Sheet Metal Workers contract expired in August
1962. In 1961 the Company was involved in jurisdictional disputes
between various crafts at this plant,4 and in order to forestall future
disputes the Company suggested changing jurisdictional language
in various contracts s so that each craft would be guaranteed the
work that had been assigned to it in the past. At negotiations sub-
sequent to the expiration of the Respondent 's contract the Company
advanced this proposal . Respondent rejected the proposal and claimed
that under the jurisdictional clause in the expired contract it was
entitled to the area practices as far as sheet metal work was con-
cerned. During the course of negotiations , the Respondent made
claim to the five areas of -work in issue here, although members of the
JAM had always performed the work in four of the categories and
had performed the Work in the fifth category since 1957.
On December 12, 1962, during negotiations on a contract, Allen
Board, business agent of Respondent , had a telephone conversation
with Frank Chance, chief negotiator for the Company . During a dis-
cussion of the disputes over work assignments , Board, told Chance
that, "We never put a picket line up but we would not hesitate to do
so." At a meeting on January 14, 1963, the Respondent agreed to all
of the Company 's contract proposals except that pertaining to the
Respondent's jurisdiction . During the meeting, Board , in relating a
previous dispute with the Company over the hanging of a fan, stated,
"We got no consideration on it and we won't allow it to happen again,
and if we have to strike , that will be part of it." On January 15, 1963,
the Company reduced its contract proposals to writing and distributed
them to the Respondent . At a subsequent meeting on February 12,
The IAM since 1937, the Sheet Metal Workers since 1946
' The Company voluntarily recognized both the Respondent and IAM. On May 10, 194'8,
a U.A certification ( authorization to execute a union-security contract) was issued to
Lodge 681.
' See Pipefttters Local Union No 522 and Plumbers and Gas Fitters Local No 107,
United Association of Journeymen and Apprentices of the Plumbing and Pipefittinq Indus-
try of the United States and Canada , AFL-CIO (Brown and Williamson Tobacco Corpora-
tion ), 139 NLRB 1140.
5 The jurisdictional provision in the Sheet Metal Workers' expired contract stated:
All work coming under the jurisdiction of the Sheet Metal Workers International
Association shall be performed by the Sheet Metal Workers International Association
members only , and employee members of the Union shall perform all sheet metal
work required of them by the Company In the event of any dispute as to whether
the employee on any particular work should be a member of the Union or of some
other union affiliated with the American Federation of Labor, then the Sheet Metal
Workers International Association and Local No. 110 shall do everything within
their power promptly to settle such dispute. Pending the final settlement of such
dispute, the work subject of the dispute shall be performed by an employee as the
Company deems proper until such time as such dispute shall have finally been settled
and such settlement acquiesced in by all the parties thereto and there shall be no
stoppage of work by the union by reason of such dispute.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company asked for the Respondent's response to its new written
proposals and Board replied, "We are in agreement with everything
but the jurisdictional language." On February 25, during the course
of another negotiating session, the Company and the Respondent dis-
cussed the assignment of the work in dispute. No agreement was
reached and Heyser, Respondent's chief business representative, stated,
"We don't like to threaten a strike, but we will strike if we have to."
Throughout the negotiations the Respondent insisted that the jurisdic-
tional language contained in the expired contract be incorporated in
any new contract and that the language be interpreted to award sheet
metal work to employees represented by the Respondent in accordance
with "area practice," which the Respondent maintained would entitle
it to the work in the five areas of dispute.
B. Contentions of the Parties
The IAM and the Company take the position that the work assign-
ments as they are presently being made are not in violation of con-
tract or certification and should continue in the present manner.
The Respondent, admitting the threats, claims they were made to
achieve u new contract and not to coerce the Company in its job as-
signments. Respondent also takes the position that the disputed work
is sheet metal work and alleges that area practice establishes its claim
to it.
C. Applicability of the statute
The Board must be satisfied that there is reasonable cause to believe
that Section 8 (b) (4) (D) of the Act was violated before it may proceed
with a determination of dispute pursuant to Section 10 (k) of the Act.
The facts of this case show repeated threats to strike unless Respond-
ent's demands were met regarding the work assignments. These
threats are admitted. The contention of the Respondent that the
threats were made only to secure the contract provision existing in the
expired contract does not correspond to the factual context surround-
ing the demands for specific work assignments . The provision had
existed in previous contracts for several years. The contract demands,
though real, carried with them an equally real demand for the disputed
work. The Respondent was attempting to obtain the work in the five
areas of dispute by asserting that the jurisdictional provision in the
expired contract should be interpreted to assign work according to area
practice, thus giving the work to the Respondent's members. This
was directly contrary to the interpretation always placed on the pro-
vision and generally acquiesced in by all the parties that plant practice
should prevail in the making of work assignments. That the Re-
LOCAL 110, SHEET METAL WORKERS INT'L ASSN., ETC. 951
spondent asserted its claim at the time of contract negotiations in the
form of a contractual demand does not disguise the fact that it was
an attempt to obtain job assignments by demanding the reinterpreta-
tion of a contract provision. The Board has consistently held that
jurisdictional demands, in the guise of contract interpretation, are not
insulated from the reach of Section 8(b) (4) (D) merely because the
work dispute stems from the Employer's and Union's differing inter-
pretations of a jurisdictional clause.'
We find, upon the basis of the foregoing, that there is reasonable
cause to believe that Section 8 (b) (4) (D) has been violated. Accord-
ingly, we further find that the dispute is properly before the Board
for determination under Section 10 (k) of the Act.
Merits of the Disputes
There have been no changes in the disputed work assignments for
several years. The Machinists have done the work. Neither the Sheet
Metal Workers nor Machinists have contract provisions which explic-
itly cover' the jobs. We cannot view the jurisdictional provisions in the
Sheet Metal Workers contract as evidence in support of its demands,
for we think it apparent from the record that they themselves have
not thought so. Thus, since 1957, as pointed out above, this provision
has existed in the collective-bargaining agreements between the parties,
with a general acquiescence in the work assignments as they presently
exist.
Nor do we agree with the Respondent's contention that area prac-
tice would establish these assignments in favor of the Sheet Metal
Workers. The record shows that work of this nature is, indeed, done
by members of the Respondent Union, but this has been in other in-
dustries, i.e., construction. The Board has recognized area practice
as a relevant factor in jurisdictional disputes's but it has also estab-
lished that no substantial significance can be attached to patterns of
work assignments in industries different from the one involved in
the dispute.' Furthermore, a witness for the Respondent admitted that
at a plant of a competitor of the Company in Louisville, work similar
to that at issue was assigned to employees represented by the Tobacco
Workers.
9 Wtillamette National Lumber Co., et at., 107 NLRB 1141, at 1143.
'Except perhaps article 1, section 1(b) of the IAM contract which provides for the
representation of welders.
8 J A Jones Construction Company, 135 NLRB 1402.
9 Pipefittere Local 'Union S22 , and Plumbers and aasfltters Local 107, TJnsted Assocsa-
toon of Journeymen and Apprentices of the Plumbers and Pspefitters of United States and
Canada, AFL-CIO (Brown and Williamson ), supra
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No issue exists as to the competency of those presently assigned
this work. In some instances TAM members have been doing the
specific work since 1937. Essentially, therefore, we see but a bare claim
for the work by the Sheet Metal Workers, with little more. We have
been presented with no convincing reasons to change work assignments
that have existed for many years.
In view of the foregoing, we shall determine the jurisdictional
dispute by awarding the disputed work to the machinists. The present
determination is limited to the particular controversy which gave rise
to this proceeding. The Board is assigning this work to machinists
who are represented by Lodge 681, International Association of Ma-
chinists, and not to the TAM or its members.
We find that the Sheet Metal Workers are not and have not been
entitled by means proscribed by Section 8(b) (4) (D) of the Act to
force or require Brown and Williamson Tobacco Corporation to assign
the disputed work to sheet metal workers rather than to machinists.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and upon the entire record
in the case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act :
1. Machinists employed by the Brown and Williamson Tobacco
Corporation who are represented by Lodge 681, International Associa-
tion of Machinists, AFL-CIO, are entitled to perform the work in
dispute herein, specifically: work tasks involving (1) angle irons, (2)
hanging fans, (3) louvres, (4) welding, and (5) repair and modifica-
tion of metal trays at the Brown and Williamson plant in Louisville,
Kentucky.
2. Local 110, Sheet Metal Workers Association, AFL-CIO, and
its agents, Allen Board and Randolph Heyser, are not and have not
been lawfully entitled to force or require the Brown and Williamson
Tobacco Corporation to assign the disputed work to sheet metal
workers.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 110, Sheet Metal Workers International Association,
AFL-CIO, and its agents, Allen Board and Randolph Heyser, shall
notify the Regional Director for the Ninth Region in writing whether
or not it will refrain from forcing or requiring the Brown and
Williamson Tobacco Corporation by means proscribed by Section
8 (b) (4) (D), to assign the work in dispute to sheet metal workers who
are its members rather than machinists who are represented by Lodge
681, International Association of Machinists, AFL-CIO.