Sheet Metal Workers Int'l Assoc., Local 162

National Labor Relations Board - Board Decisions

Feb 19, 1965

151 N.L.R.B. 195 (N.L.R.B. 1965)

SHEET METAL WORKERS INT'L ASSOC., LOCAL 162 195
any labor organization which represents his employees . I would substitute a rule
of reason for a doctrinaire approach, for this is an area in which Board policy must
rest on the facts of the particular case.
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
Respondent has not engaged in unfair labor practices within the meaning of Section
8(a)(1) and (5) of theAct.I7
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
11 The General Counsel asks for a backpay order Apart from the fact that the employees
for whom such an order would provide are unnumbered and unidentifiable and could not be
ascertained at any stage of the proceeding , I consider the request for backpay for employees
from whom no work was taken and against whom no discrimination is claimed as a
flagrant attempt to abuse the Board's iemedial powers. It is not only punitive, It is
unconscionable.
Sheet Metal Workers International Association , Local 162, AFL-
CIO; Sheet Metal Workers International Association, Local
150, AFL-CIO; and Sheet Metal Workers International Asso-
ciation , AFL-CIO I and Lusterlite Corporation and United
Brotherhood of Carpenters and Joiners of America , Local 470,
AFL-CIO; Sacramento-Yolo-Amador District Council of Car-
penters, AFL-CIO; and United Brotherhood of Carpenters
and Joiners of America , AFL-CIO. Cases Nos. 20-CD-120
and 19-CD-87. February 19, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following charges filed by Lusterlite
Corporation, herein called Lusterlite or the Company, alleging that
Sheet Metal Workers International Association, AFL-CIO, and its
Locals 162 and 150, herein respectively called Respondent Interna-
tional, Respondent Local 162, and Respondent Local 150, or collec-
tively Respondents, had violated Section 8(b) (4) (D) of the Act by
inducing and encouraging employees of Lusterlite and its subcon-
tractors to strike, and by coercing and restraining Lusterlite and its
subcontractors for the purpose of forcing or requiring Lusterlite to
assign certain work to employees represented by Respondents rather
than to employees represented by Local 470, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and Sacramento-
1 Since the issues and parties in Cases Nos . 20-CD-120 and 19-CD-87 are substantially
the sane and the disposition of these cases would be facilitated if they are considered to-
gether , we have granted the Charging Party's motion to consolidate these cases for pur-
poses of decision
151 NLRB No. 21.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yolo-Amador District Council of the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, herein together called
the Carpenters.
Pursuant to notice, separate hearings were held before Hearing
Officer Natalie P. Allen at San Francisco, California, on January 7,
February 11 through 13, and April 6 through 9, 1964, and before
Hearing Officer Robert E. Tillman at Seattle, Washington, on June 29,
1964. All parties who appeared at the hearings were afforded
full opportunity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the issues. The rulings
of the Hearing Officers made at the hearings are free from preju-
dicial error and are hereby affirmed. All parties filed briefs which
have been duly considered.
Upon the entire record in these cases, the National Labor Rela-
tions Board 2 makes the following findings :
1. The business of the Employer
Lusterlite is a Delaware corporation with its principal offices in
Cicero, Illinois. It is engaged in the construction of porcelain
enamel gasoline service stations throughout the United States. Dur-
ing 1963, it constructed gasoline stations valued in excess of $1 mil-
lion. We find that Lusterlite is engaged in commerce within the
meaning of the Act and that it will effectuate the purposes of the
Act to assert jurisdictions herein.
2. The labor organizations involved
The Respondents and the Carpenters are labor organizations with-
in the meaning of Section 2(5) of the Act.
3. The dispute
A. Background
Lusterlite's construction process involves affixing precut and
grooved steel panels with porcelain enamel facings to both the inte-
rior and exterior of a structural steel frame which is erected sepa-
rately by ironworkers whom it employs. A large part of the panel
installation work is performed by Lusterlite's specially trained per-
manent employees, called permanent porcelain erectors, who travel
to the various construction sites where they locally hire helpers as
required. The permanent erectors are journeymen carpenters who
are members of the Carpenters. Lusterlite has instructed its erectors
2 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 Brown and Jenkins]
SHEET METAL `YORKERS INT'L ASSOC., LOCAL 162 197
to hire as helpers journeymen carpenters pursuant to a nationwide
agreement with the Carpenters International, the first agreement
dating back to 1949.
In accordance with these instructions, all but 225 of the 4,500 to
5,000 stations built by Lusterlite have been erected with carpenter
helpers. Of the 225 stations erected with helpers who were not
carpenters, all but a few were constructed in the Milwaukee, Wiscon-
sin, area, where it is the established industry practice to employ
sheet metal workers for all porcelain panel installation. Sheet metal
workers were also used as helpers in the construction of three sta-
tions on Long Island, New York, and ironworkers were employed
as helpers on sites in Newark and Hackensack, New Jersey, as the
result of jurisdictional claims made by locals of the Sheet Metal
Workers and Iron Workers in those areas.
Late in 1962, Lusterlite expanded its operaeions to the west coast
of the United States. When it attempted to extend to this area its
practice of hiring carpenters as helpers to its erectors, locals of the
Sheet Metal Workers protested. At the instance of the Sheet Metal
Workers' Locals a number of these disputes were submitted to the
National Joint Board for Settlement of Jurisdictional Disputes,
herein called the Joint Board. On the basis of past area practice,
the Joint Board consistently awarded the job assignment for instal-
lation of Lusterlite panels in the west coast region to sheet metal
workers. Although not bound by Joint Board awards, Lusterlite
voluntarily accepted the Joint Board determinations in those infre-
quent cases where the job had not already been completed, and sub-
stituted sheet metal workers for carpenters.
B. The work at issue
The present proceedings derive from disputes at construction sites
in Sacramento and Fresno, California, and Tacoma, Washington.
In May 1963 E. Miller, a permanent Lusterlite erector, was given
the assignment of constructing two service stations in Sacramento,
California. Having recently been involved in the same kind of juris-
dictional dispute which developed here, and seeking to avoid a simi-
lar problem at the Sacramento sites, Miller first orally requested a
carpenter-helper from the Sacramento-Yolo-Amador District Coun-
cil of Carpenters, and then informed Sheet Metal Workers Local 162
of his plans to erect stations in the area. On learning that Local
162 intended to press a claim to the helper jobs, Miller telephoned
his home office for instructions. E. P. Tappe, his field supervisor,
told him that, in view of the Sheet Metal Workers' claim to the jobs,
helpers should be recruited from among sheet metal workers. Tappe
also authorized Miller to agree in writing with Local 162 to hire
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sheet metal workers at the Sacramento stations and to sign Local
162's Standard Area Agreement which provides in part that: "The
Employer agrees that none but journeymen and apprentice sheet
metal workers shall be employed on . . . assembly, handling, erec-
tion, installation, repairing and servicing of all ferrous or nonferrous
sheet metal work of No. 10 U.S. gauge or its equivalent of lighter
gauge...."
When D. Fair, Lusterlite's construction manager, who is also in
charge of its labor relations, learned of Tappe's instructions to
Miller, he ordered Miller to disregard the written contracts with
Local 162 and to hire carpenters pursuant to the Company's national
agreement with the Carpenters International. Miller started his first
job with a carpenter as his assistant. Shortly thereafter pickets
from Local 162 appeared at the jobsite protesting that the Company
had acted unfairly by violating the Joint Board's procedural rule
prohibiting a change in job assignments without the consent of both
unions involved. Lusterlite informed the Joint Board of the juris-
dictional dispute and later complied with that Board's decision
awarding the disputed work to sheet metal workers on the basis of
the written job assignment. The job was completed without further
incident. However, when work began on a second construction site
in Sacramento, the Carpenters briefly maintained pickets around the
site, but removed them when it received a promise from Fair that
there would be no further deviations from the national agreement.
Three months later similar problems were encountered at two more
stations scheduled to be erected in Sacramento. At these sites, Local
162 threatened Lusterlite's permanent porcelain erector with picket-
ing if the helper work was not assigned to sheet metal workers.
When Fair learned of the dispute, he at first said that he would
assign the disputed jobs to Local 162 members. Later he withdrew
his promise and authorized the hiring of carpenters who completed
the work. Sheet metal worker pickets appeared for 1 day at one
of the sites and caused a temporary work stoppage.
After completion of the Sacramento stations, Lusterlite started
construction of a station at Fresno, California. A representative of
the Sheet Metal Workers' local in that area claimed the helper work
for his members and threatened to "protest" if they did not receive
the work. However, no picketing occurred and no additional threats
were made, despite the fact that a carpenter was given the helper
job assignment.
In June 1964, Respondent Local 150 picketed a Lusterlite con-
struction site in Tacoma, Washington, to protest the hiring of a
carpenter to assist in panel installation. In the previous year Luster-
3 Lusterlite ' s porcelain panels are of 20 gauge which is half the thickness of the 10-gauge
standard set out in the contract.
SHEET METAL WORKERS INT'L ASSOC., LOCAL 162 199
lite had built two other stations in that locality. It had started these
projects with carpenter-helpers, but later replaced them with sheet
metal worker-helpers in deference to a Joint Board decision.
C. Contentions of the parties
The Company requests a determination that carpenters are en-
titled to the job of installing porcelain enamel panels and related
work at service stations throughout the entire geographical area,
with the exception of Milwaukee, Wisconsin, in which it operates.
In support of this position, the Company relies on its nationwide
collective-bargaining agreement with the Carpenters International,
its past employment practices, and the greater efficiency and econ-
omy resulting from the use of carpenters rather than of sheet metal
workers. It further contends that a determination limited to spe-
cific sites would be inadequate in view of the highly mobile nature
of its operations, and the fact that similar disputes are arising at a
number of sites across the country, especially in the States of Wash-
ington, Oregon, California, and Arizona.
The Carpenters claims the disputed work on the basis of increased
efficiency and economy, and on the long- and well-established past
practice of the Company under the nationwide agreement, but does
not make a request with respect to the scope of the determination.
The Sheet Metal Workers contends that a nationwide award is
unwarranted since the evidence does not show that jurisdictional
disputes exist outside the specific sites in Sacramento and Tacoma
involved in these proceedings, and only the local unions in these
areas have been made parties. It requests that the disputed work
be assigned to sheet metal workers on the basis of specific work
assignments for the first two Sacramento sites; a standard area con-
tract, supported by verbal assurances, covering the remaining two
sites in Sacramento; consistent area practice in favor of sheet metal
workers throughout the west coast; and Joint Board awards, in-
cluding one in the Tacoma area, unanimously awarding this type of
work to its craft.
D. Applicability of the statute
Before the Board may proceed to a determination of dispute pur-
suant 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 record shows that Respondents Locals 162 and 150 picketed
jobsites at which Lusterlite was constructing gasoline service sta-
tions with an object of forcing or requiring Lusterlite to assign
certain work to sheet metal workers rather than to carpenters.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents contend that this evidence does not establish reasonable
cause to believe that Section 8(b) (4) (D) has been violated because
sheet metal workers are clearly entitled to the disputed work by
virtue of the written job assignments and standard area contract
signed by Erector Miller, and the oral assurances of Construction
Manager Fair, at the Sacramento sites. We find no merit in this
argument. Locals 162 and 150 picketed construction jobs to obtain
jobs for sheet metal workers which Lusterlite had assigned to car-
penters. The bargaining representative of the latter resisted and
still resists this claim of the two Sheet Metal Worker locals. These
facts establish the probable existence of a jurisdictional dispute.
Respondents' argument is really addressed to the merits of the juris-
dictional dispute and not to its existence.
Respondents also contend that the awards of the Joint Board
should be considered as a resolution of the present jurisdictional dis-
pute. Although the Carpenter and Sheet Metal Workers Interna-
tionals have agreed to be bound by determinations of the Joint Board
in settling jurisdictional disputes, Lusterlite has made no similar
agreement .4
Accordingly, we find that there is reasonable cause to believe that
a violation of Section 8(b) (4) (D) has occurred, and that the dispute
is properly before the Board for determination under Section 10(k)
of the Act.
E. Merits of the dispute
In the J. A. Jones 5 case, the Board said that in resolving jurisdic-
tional disputes, it will consider all the relevant factors in each case;
e.g., the skills and work involved, certifications by the Board, com-
pany and industry practice, agreements between unions and between
employers and unions, awards of the Joint Board, assignments made
by the employer, and the efficient operation of the employer's busi-
ness. The Board also said that it "cannot at this time establish the
weight to be given the various factors. Every decision will have to
be an act of judgment based on common sense and experience rather
than on precedent." The following are the relevant factors we have
considered in resolving the present jurisdictional dispute.
1. Agreements and work assignments of the Employer
Since 1949 Lusterlite has been a party to a collective-bargaining
contract with the Carpenters International under which the former
has agreed "to recognize the jurisdictional claims of the United
Brotherhood." Although this contract does not set out the specific
4International Union of Operating Engineers , Local 66 , AFL-CIO ( Frank P. Badolato
cC Son ), 135 NLRB 1392.
5International Association of Machinists , Lodge No. 1743 , AFL-CIO (J A. Jones Con-
struction Company ), 135 NLRB 1402, 1410.
SHEET METAL WORKERS INT'L ASSOC ., LOCAL 162 201
jobs intended to be covered , it has in fact been applied in the past
to the local hiring of carpenters as panel installation assistants by
Lusterlite 's permanent erectors.
On the other hand, Lusterlite 's permanent erector at the first two
Sacramento stations signed a standard area agreement with Respond-
ent Local 162 which bound the Company to use sheet metal workers
for panel installation in that area . Although Lusterlite now ques-
tions the authority of the permanent erector to enter into this agree-
ment, and although it is doubtful whether the contract was still in
effect when the second pair of stations in Sacramento were con-
structed , Lusterlite's construction manager did later give his verbal
assurance that sheet metal workers would be used on these stations
in accordance with the agreement . As to the rival contract claims
at the Sacramento stations , it thus appears that these claims are
approximately equal in weight.
2. Skills involved
Neither craft union contends its members are better qualified than
those of the other to perform the work of panel installation, al-
though Respondents claims that the installation process sometimes
requires the cutting of porcelain panels, which sheet metal workers
are better able to do than carpenters. The Company says that there
is little need for such cutting and points to the fact that its perma-
nent erectors are trained in this operation. We conclude that there
is no appreciable difference in the qualifications of the crafts to do
the disputed work.
3. Efficiency of operations
In some areas of the west coast, including Tacoma, locals of the
Sheet Metal Workers restricted the permanent erector, who is a car-
penter, to the performance of supervisory functions. This required
the hiring of two assistants, instead of the usual one, to assist in the
manual work of installing the panels. In other west coast areas,
including Sacramento, Lusterlite also used two assistants, although
no specific demand was made for such practice by the Sheet Metal
Workers' locals. This requirement that two assistants be hired in
place of one, where local carpenters are used, obviously adds to the
construction costs of Lusterlite. It is a factor favoring assignment
of the disputed work to carpenters.
4. Company practice
Lusterlite has adhered to its agreement with the Carpenters Inter-
national at all but 225 of the 4,500 to 5,000 stations which it has
constructed. Most of the exceptions arose in the Milwaukee, Wis-
consin, area, where the Company followed the practice of hiring
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sheet metal workers after the Joint Board had awarded the dis-
puted work to sheet metal workers at one of the first Lusterlite sta-
tions erected in that area . On the west coast , Lusterlite sought to
adhere to its agreement with the Carpenters International , except
when faced with adverse Joint Board rulings or vigorous protests
from locals of the Sheet Metal Workers. At times, in areas where
labor trouble was anticipated , the Company hired sheet metal work-
ers originally , in order to head off possible disputes . The Company
practice therefore favors the use of carpenters except where Joint
Board awards or local area practice dictate the use of sheet metal
workers.
5. Joint Board awards and area practice
On the west coast, Joint Board awards have been uniformly in
favor of sheet metal workers over carpenters. Since these awards,
covering locations in the States of Washington and California, are
based solely on area practice, and in view of additional testimony
on this point by representatives of four other companies construct-
ing porcelain panel service stations in California, we find that the
area practice favors sheet metal workers.
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
After weighing the relevant factors in this case, we shall deter-
mine the jurisdictional dispute by awarding the work of installing
panels and related duties at station sites in Sacramento, California,
and Tacoma, Washington, to sheet metal workers. We have given
particular weight to Joint Board awards which have been accepted
by Lusterlite, and to local area practice. We have also taken into
account the fact that sheet metal workers are as competent as car-
penters to do the disputed work. We do not consider that possible
economies resulting from the use of carpenters, or the national agree-
ment with the Carpenters International and the practice in areas
outside of the west coast, overbalance the weight to be given to
local area practice and Joint Board awards.
Our award is limited to the construction sites in Sacramento, Cali-
fornia, and Tacoma, Washington, which were designated in the
charges and notices of hearing in these cases. We reject Lusterlite's
request for a determination which would cover the whole United
States. The evidence indicates that in most areas there is no dispute
among unions as to which employees shall assist Lusterlite's perma-
nent erectors. In areas where a dispute does exist, the practice
varies. As our decision indicates, we consider area practice as a
very important determinant in making jurisdictional awards."
6In view of the determination in these cases , we find it unnecessary to decide whether
there is reasonable cause to believe that respondent Sheet Metal Woikers International
Association, AFL-CIO, has violated Section 8 (b) (4) (D) of the Act.
CAMCO, INCORPORATED 203
DETERMINATION OF THE DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act,
as amended, and upon the basis of the foregoing findings, the
National Labor Relations Board hereby makes the following deter-
mination of the dispute.
Employees engaged as sheet metal workers are entitled to perform
the work of installing interior and exterior porcelain enamel panel-
ing and related work at gasoline service stations constructed by
Lusterlite Corporation in Sacramento, California, and Tacoma,
Washington.
Cameo, Incorporated and International Association of Machin-
ists, District Lodge 37, AFL-CIO. Cases Nos. 23-CA-1754 and
23-CA-1784. February 23, 1965
DECISION AND ORDER
On October 6, 1964, Trial Examiner William J. Brown issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner also
found that the Respondent had not engaged in certain other
alleged unfair practices and recommended dismissal thereof. There-
after, the Respondent and the General Counsel filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Trial Examiner's Decision, the exceptions and briefs, and the
entire record in this proceeding, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, except
as noted herein.
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (3) and (1) of the Act by discharging employee
Jay Hughes. Contrary to the Trial Examiner, however, we find
that the Respondent's discharges of employees Homer Stone, Charles
Greer, and Warren Young were similarly violative of the Act.
151 NLRB No. 25.