Local 172, Sheet Metal Workers International Association, AFL-CIO (The Wing Company, Division of Wing Industries, Inc.)

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 870 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 172, Sheet Metal Workers International Asso-
ciation, AFL-CIO and The Wing Company, Di-
vision of Wing Industries, Inc. and Local 427,
International Union of Electrical, Radio and
Machine Workers, AFL-CIO. Case 22-CD-376
August 31, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by The Wing Company, Division
of Wing Industries, Inc., herein called the Employ-
er, alleging that Local 172, Sheet Metal Workers
International Association, AFL-CIO, herein called
Sheet Metal Workers, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requir-
ing the Employer to assign certain work to its
members rather than to employees represented by
Local 427, International Union of Electrical, Radio
and Machine Workers, AFL-CIO, herein called
Electrical Workers.
Pursuant to notice, a hearing was held before
Hearing Officer John Mansfield on April 19, 1982.
All parties appeared and were afforded full oppor-
tunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues.
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:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a New Jersey corporation, is engaged in
the manufacture and sales of industrial heating and
ventilating equipment at its Cranford, New Jersey,
facility. During the preceding 12 months, the Em-
ployer in the course and conduct of its business op-
erations derived gross revenues in excess of $50,000
from the sales of its products directly to customers
located outside the State of New Jersey. Accord-
ingly, we find that the Employer is engaged in
commerce within the meaning of Section 2(6) and
263 NLRB No. 116
(7) of the Act and that it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Sheet Metal Workers and the Electrical Workers
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
IIl. THE DISPUTE
A. Background and Facts of the Dispute
During the summer of 1980 the Employer decid-
ed to begin the in-house production of finned tubes,
a necessary component of many of its heating and
ventilating products. Finned tubes consist of
hollow, copper, U-shaped tubing on which flat
pieces of aluminum are attached. The machinery
needed to manufacture finned tubes arrived at the
Employer's facility during August or September
1981. Up to this time the Employer purchased
finned tubes from an independent manufacturer of
such equipment.
Prior to the October 1981 startup of finned tube
production, the Employer discussed the assignment
of the work with both the Sheet Metal Workers
and the Electrical Workers. Both Unions claimed
the work and could not agree between themselves
as to whose members should perform the new
work. Therefore .the Employer decided to assign
the finned tube manufacturing operation to the em-
ployees represented by the Sheet Metal Workers
and, in December 1981, entered into an agreement
with the Sheet Metal Workers to that effect.'
In a telephone conversation on or about March
12, 1982, the business manager of the Sheet Metal
Workers notified the Employer that in the event
the finned tube operation was transferred to the
Electrical Workers he would pull the men out of
the shop. The Employer thereafter filed the charge
in this proceeding.
B. The Work in Dispute
The specific work in dispute is the setup and op-
eration of machinery used in the fabrication and as-
sembly of finned tubes.
C. The Positions of the Parties
The Employer contends that the work in dispute
should be awarded to its employees who are repre-
sented by the Sheet Metal Workers. It contends
that the proximity of the sheet metal foreman's
The ratification date for both the Sheet Metal Workers and the Elec-
trical Workers collective-bargaining agreements with the Employer is
October 7, 1981. Neither contract specifically addresses the issue of this
disputed work.
870
LOCAL 172, SHEET METAL WORKERS
office to the finned tube machinery contributes to
efficiency of operation, that the sheet metal work-
ers currently performing the work are familiar with
the operation, that the sheet metal workers' fore-
men are adept in setting up and operating all the
equipment involved, that similar work is performed
within the plant by sheet metal workers, and that
using sheet metal workers is more economical rela-
tive to using electrical workers.
The Electrical Workers contends that the work
in dispute should be awarded to employees repre-
sented by it on the basis of its collective-bargaining
agreement, that the work in question is production
work rather than sheet metal work, and that its
members possess the minimal skills necessary for
the performance of the disputed work.
The Sheet Metal Workers contends that the
work in dispute should be awarded to employees
represented by it based on the similarity of this
work to other work performed for this Employer
by sheet metal workers, company preference, econ-
omy and efficiency of operation, and the lack of
any job displacement as a result of the assignment
of the disputed work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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 the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
The parties stipulated that the Sheet Metal
Workers representative threatened economic
action, i.e., "to pull his men out of the shop," to
protect its claim to the disputed work. The record
also is clear that the parties were unable voluntar-
ily to reach accord as to the appropriate assign-
ment of the work. There is no agreed-upon method
of adjustment of the dispute.
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and that
there existed no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this dispute is properly before the Board for
determination.
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.2 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.3
The following factors are relevant in making the
determination of the dispute before us:
1. Skills and training
It is undisputed that the employees represented
by the Sheet Metal Workers have performed this
work since the Employer began production of
finned tubes. The production process itself is as fol-
lows: First, the copper tube is formed by straight-
ening the copper as it comes off a coil. It is then
cut to length and bent in the form of a "U" or in a
90-degree bend. At the same time that the tubes are
being formed, a roll of aluminum sheet is fed into a
fin press where the aluminum is slit, pressed,
punched, and formed into a fin. At the assembly
area the fin is slid onto the tube, forming an assem-
bly. The tube is then expanded to tighten the fit of
the fins and thereafter swaged back down to its
original size. Five employees are needed to per-
form the various steps involved in this process. The
Employer concedes that the only aspect of the
finned tube manufacturing process which involves
particular skill is the setup of the machinery prior
to the actual straightening, cutting, slitting, press-
ing, punching, etc. The employees performing the
setup work are sheet metal workers who have been
specially trained in this operation. However, the
other employees needed to complete the produc-
tion functions are not specifically trained individ-
uals, but rather have acquired the ability to carry
out the running of the machinery through on-the-
job experience since assignment of the work to
them was made. The record establishes that em-
ployees represented by either Sheet Metal Workers
or Electrical Workers could have carried out the
production work involved, as described above,
with equal skill, safety, and facility.
Aside from the setup man, a sheet metal worker,
the other individuals performing the production
jobs in dispute are not specially skilled. Therefore,
the relative skills factor does not favor awarding
the work to the employees represented by either
Union.
N.LR.B. v. Radio & Television Broadcast Engineers Union. Local
1212, International Brotherhood of Electrical Workers. AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961).
3 International Association of Machinists. Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Collective-bargaining agreements
Article I, section 3, of the Sheet Metal Workers
contract with the Employer states, "The Company
shall assign all sheet metal production and sheet
metal maintenance work under this Agreement to
employees covered by this Agreement." The Elec-
trical Workers contract with the Employer does
not address the issue of work jurisdiction. Neither
collective-bargaining agreement mentions the
finned tube assembly operation.
The Electrical Workers maintains that the work
in question is not strictly sheet metal production
work and, therefore, falls outside the description of
the Sheet Metal Workers contractual jurisdiction.
It contends that the work involved is comparable
to other production and maintenance work that its
members perform, under the general "production
and maintenance" category.
The record indicates that employees who are
members of both Unions perform similar punch
press jobs throughout the Employer's facility. The
types of work done in the Employer's operation in-
clude a number of jobs which do not fall squarely
within the contemplation of either Union's tradi-
tional expertise, and the practice of the parties to
the dispute does not present a clearly legitimate
claim by either Union. Accordingly, we find that
the factor of the collective-bargaining contracts
does not favor an assignment to the employees rep-
resented by either Union.
3. Economy and efficiency of operations
The machinery used in the production of finned
tubes is located within view of the sheet metal
foreman's office and very near to the door through
which incoming materials arrive. The Employer
emphasized that the finned tube production ma-
chinery's accessibility to both of these areas was
determinative of its placement.
The sheet metal foreman oversees the entire
finned tube assembly operation. He was chosen for
this responsibility (prior to the assignment of the
work to the sheet metal workers) because he had
extensive training in the finned tube production
process and was involved in determining the speci-
fications of the production machinery ordered by
the Employer. He also worked along with the in-
dustrial engineer in setting up the machinery when
it arrived. The Employer's assignment of the work
to the sheet metal workers was largely due to its
belief that ease of operation could be achieved by
having a sheet metal foreman oversee sheet metal
workers in the performance of this finned tube as-
sembly operation.
The efficiency of the operation favors continuing
the work assignment to the sheet metal workers,
given the sheet metal foreman's extensive knowl-
edge of and experience with the operation and the
greater likelihood that the work would proceed
more smoothly by his working with other sheet
metal workers rather than with members of the
Electrical Workers.
4. Employer assignment and preference
As set forth above, the Employer made the as-
signment to the sheet metal workers primarily be-
cause of the perceived efficiency and continuity
gained by having a sheet metal worker foreman
oversee sheet metal worker production employees.
These employees have been performing the disput-
ed work and are producing the finned tubes at an
acceptable level of efficiency. This would be dis-
rupted by taking them off the job and retraining
electrical workers to perform the work. The record
indicates that it would take approximately a month
for a new employee crew to achieve the current
output level. This factor clearly favors assignment
of the work to employees represented by the Sheet
Metal Workers Union.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors, we conclude that
employees who are represented by the Sheet Metal
Workers are entitled to perform the work in dis-
pute at the Employer's Cranford, New Jersey, fa-
cility. We reach this conclusion relying on the fac-
tors of economy and efficiency of operations and
employer assignment and preference. In making
this determination, we are awarding the work in
dispute to employees who are represented by Local
172, Sheet Metal Workers International Associ-
ation, AFL-CIO, but not to that Union or its mem-
bers. This determination is limited to the particular
controversy which gave rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing facts and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of The Wing Company, Division of
Wing Industries, Inc., who are represented by
Local 172, Sheet Metal Workers International As-
sociation, AFL-CIO, are entitled to perform the
work involved in setting up and operating the ma-
chinery used in the fabrication and assembly of
finned tubes at the Employer's Cranford, New
Jersey, facility.
872