Sheet Metal Workers Local, 332

National Labor Relations Board - Board Decisions

Jun 3, 1969

176 N.L.R.B. 372 (N.L.R.B. 1969)

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers Local Union No. 332,
AFL-CIO' and Lear-Siegler , Inc. - Holly
Division , Charging Party and International
Chemical Workers Union , Local No. 766,
AFL-CIO, Party to Contract. Case 36-CD-49
June 3, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULI OCH AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed on January 22, 1969, and an
amended charge filed on February 11, 1969, by
Lear-Siegler, Inc. Holly Division, hereinafter
called Lear-Siegler or the Employer, alleging that
Sheet Metal Workers Local Union No. 332,
AFL-CIO, hereinafter called Sheet Metal Workers,
had violated Section 8(b)(4)(D) of the Act. A
hearing was held pursuant to notice at Eugene,
Oregon, on March 18 and 19, 1969, before Hearing
Officer Patrick H. Walker. Employer, Sheet Metal
Workers, and International Chemical Workers
Union, Local No. 766, AFL-CIO, hereinafter called
Chemical Workers, appeared at the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Employer and Sheet
Metal Workers filed briefs in support of their
positions.
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.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE FMPLOSER
The record discloses that the Employer, an
Oregon corporation wholly owned by Lear-Siegler,
Inc., a California corporation, is engaged in the
sale, servicing, installation, replacement and repair
of heating and air-conditioning equipment. The
Employer purchased, during the year preceding the
hearing, in excess of $100,000 worth of goods and
materials which originated outside the State of
Oregon and were delivered to it from points directly
outside the State of Oregon, or directly from
persons who in turn received said goods and
materials directly from points outside the State of
As amended at the hearing to reflect its correct designation.
176 NLRB No. 41
Oregon. We find that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
11. THE I ABOR ORGANIZATIONS INVOLVED
The record shows, and we find, that Sheet Metal
Workers and Chemical Workers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work at Issue
This proceeding arises out of a dispute over
whether work involving the installation of heating
and air-conditioning equipment , including the
installation of prefabricated ducts and vents, should
be assigned to members of Sheet Metal Workers or
retained by employees represented by Chemical
Workers.
B. Background and Facts of the Dispute
Lear-Siegler employs approximately eight
employees at its Eugene, Oregon, location. Its
employees, currently represented by Chemical
Workers, are designated as working foremen and
senior and junior gas-burning equipment installers.
Forty percent of the Employer's business is
derived from the sale, service, and installation of
central heating and air-conditioning equipment.
Another 40 percent is derived from the installation
of ductless heating equipment owned and leased by
Northwest Natural Gas Company. The remainder
deals with miscellaneous installation, repair, and
rebuilding services. The work in dispute is of the
first type.
The record establishes that the Employer
contracted with the general contractor, Wayne L.
Johnson, for the installation of central heating
systems and gas piping for water heaters for a
92-unit apartment house, project at 565 Coburg
Road, Eugene, Oregon. Pursuant to the terms of
this contract, the Employer has commenced the
installation of the heating systems and gas piping.
Each central heating system is built around a gas
furnace which will heat one entire apartment or
dwelling unit, normally consisting of three or four
rooms. Ordinarily the Employer assigns only one
employee to perform the necessary work in each
apartment. At times, however, an additional
employee is assigned for the purpose of assisting in
setting the heavy equipment in place. In addition to
setting the furnace in place, the employee cuts, fits,
and installs the necessary piping, in each case using
the appropriate sheet metal, pipefitting, or testing
tools. More specifically, the employee connects and
runs a gas pipe from the meter to the furnace and
SHEET METAL WORKERS LOCAL 332 373
connects the pipe to the furnace. He also runs a
sheet metal vent to the flue, generally through the
roof. The prefabricated sheet metal ducts which the
employee installs pass the air throughout the
dwelling unit. The employee pressure-tests the pipe,
purges the line of air, lights the unit, and tests it in
operation.
On January 22, 1969, while the Employer's
employees were engaged in the above-mentioned
work functions at the Coburg Road construction
site, an individual picketed the construction project
with a sign reading, "Lear-Siegler, Inc. do [sic] not
have an agreement with Sheet Metal Local 332."
Hulse. the Employer's Eugene manager, asked the
picket to explain the meaning of the sign and was
told by the picket that it was self-explanatory. As a
result of the picketing, employees working for other
subcontractors stopped work. During the work
stoppage, Hulse was ordered to take his men off the
job by the general contractor's superintendent,
Wardell, in order that the other craft employees
could return to their jobs. Hulse acceded to this
demand and did not resume work on the job until
approximately a week and one-half later, at a date
subsequent to the filing of the instant original
charge. Crosby, business agent for Sheet Metal
Workers, admitted at the hearing that he placed the
aforementioned picket upon the advice of his
Executive Board.
C. Contentions of the Parties
The Employer and Chemical Workers argue that
the instant employees should retain the work
because of economy and efficiency derived from the
flexibility in scheduling the work. They further claim
that the employees are well qualified and have
performed the work in a satisfactory manner and
that there is no reason to assign the work to Sheet
Metal Workers. In addition, the Employer asserts
that the instant dispute is part of an underlying
fundamental jurisdictional dispute and that,
therefore, the Board's award herein should extend to
the installation of similar work throughout Sheet
Metal Workers' jurisdiction. In support of its claim
that the instant dispute is part of a larger
jurisdictional dispute, the Employer points to several
prior Board awards dealing with the installation of
similar work in the northwest area' and the
statement made by Crosby that Sheet Metal
Workers would in the future again claim any similar
work performed by the Employer within its
jurisdiction.
Although claiming jurisdiction over the
installation of the furnaces and all sheet metal duct
work, Sheet Metal Workers are not claiming the gas
piping to the furnaces or the electrical hookups that
'Lear-Siegler, Inc. - Holly Division , 174 NLRB No. 4, Siegler Service
Co. 169 NLRB No. 118; Northwest Natural Gas Company. 163 NLRB
No. 56; Northwest Natural Gas Company, 156 NLRB 1071, and Cascade
Natural Gas Corporation , 149 NLRB 1014.
may be involved in the installation of such
equipment. In support of its claim, Sheet Metal
Workers argues that its members can more skillfully
and efficiently perform the disputed work and that it
has traditionally performed such work.
D. Applicability of the Statute
In a proceeding under Section 10(k) of the Act,
the Board is required to find that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated. For this purpose, the Board must find
evidence in the record that the charged labor
organization has engaged in or induced or
encouraged a strike, or has threatened, coerced, or
restrained any person engaged in commerce, with an
object of forcing an employer to assign certain work
to employees in a particular labor organization or
trade rather than to employees in another labor
organization or trade.
We find, based upon the foregoing, that there is
reasonable cause to believe that Sheet Metal
Workers sought to force a reassignment of the
disputed work in contravention of the proscription
contained in Section 8(b)(4)(D). Accordingly, the
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 the disputed work
after giving due consideration to various relevant
factors. As the Board has stated , its award is an act
of judgment based upon common sense and
experience in balancing such factors . The following
factors are relevant in making a determination of
the dispute before us.
1. Collective- bargaining agreement:
The Employer has had a bargaining agreement
with Chemical Workers for approximately 3 years.
Pursuant to this agreement , the Employer has
assigned employees represented by Chemical
Workers to perform all installation work. Sheet
Metal Workers has had no contracts with the
Employer.
2. Skills of the employees.
The members of Sheet Metal Workers receive
extensive training and undergo a rigorous
examination of their abilities in their specialized
field. The record does not establish, however, that
these employees possess any particular expertise
regarding the installation and testing of the heating
units under consideration. Rather, the duties
involved in the installation and testing are such that
the training and skills of employees represented by
Chemical Workers are sufficient to carry out all of
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the requisite operations . These latter employees
regularly attend a school of instruction conducted by
the Northwest Natural Gas Company and receive
specialized on-the -job training . In addition, all the
employees in the Employer's Eugene office, with the
exception of two men recently hired before the
hearing , possess gas fitters ' licenses from the city of
Eugene , having obtained the licenses after successful
completion of written examinations . Furthermore,
the Employer is apparently satisfied with the skills
of its employees.
3. Efficiency and economy of operations:
As discussed above, except for assistance in its
placement, the installation of a heating unit requires
only one employee. If Sheet Metal Workers were to
be assigned to the work, it would be necessary for
the different craftsmen to perform specialized
operations at different times. The result would be a
fragmented operation with increased costs, more
complicated scheduling of workers , and more time
required to complete the job.
4. Area and industry practice:
The area practice is not clearly defined. The
Employer has in the past assigned all installation
work in the States of Oregon and Washington to
employees represented by Chemical Workers. Locals
of Chemical Workers have contracts with six gas
heating equipment installation companies and two
gas distribution companies in the Pacific Northwest.
Sheet Metal Workers has contracts with several gas
heating companies in the Oregon area. These
companies , however, are primarily engaged in
plumbing or sheet metal work and only secondarily
engaged in heating . Sheet Metal Workers' assertion
that an industrywide practice is evidenced by
numerous AFL-CIO National Joint Board
determinations is inconclusive in light of the fact
that there is no evidence establishing that such
determinations dealt with the specific kind of work
here in question . Moreover, the record fails to
establish that either the Employer or Chemical
Workers was a party to such disputes.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
believe that the employees of Lear - Siegler who are
currently represented by Chemical Workers, rather
than sheet metal workers represented by Respondent
Sheet Metal Workers, are entitled to the work in
dispute . We base this conclusion upon the
Employer 's assignment of the disputed work to its
own employees , the fact that the assignment is
consistent with the Employer's past practice and the
current bargaining contract, the fact that the
employees represented by Chemical Workers possess
the requisite skills to perform the work, and that
such an assignment will result in efficiency and
economy of operations.
We shall accordingly determine the dispute before
us by awarding all installation of heating equipment,
including the fitting of pipe and prefabricated ducts
and vents attendant thereto, to those employees
represented by Chemical Workers, but not to that
Union or its members. In consequence, we shall also
determine that Sheet Metal Workers was not and is
not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the
Employer to assign the disputed work to its
members. Since there is a strong probability that
similar disputes may occur in the future, we hold
that the determination in this case applies not only
to the job in which the dispute arose, but to all
similar work done or to be done in Eugene, Oregon,
and surrounding counties, within the territorial
jurisdictional area of the Sheet Metal Workers, by
Lear-Siegler, Inc. Holly Division.'
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
hereby makes the following Determination of the
Dispute:
1. Employees of Lear-Siegler, Inc. Holly
Division, who are currently represented by
International Chemical Workers Union, Local No.
766, AFL-CIO, are entitled to perform the work of
installing heating and air-conditioning equipment,
including the fitting of pipe and prefabricated ducts
and vents attendant thereto, in Eugene, Oregon, and
surrounding counties within the territorial
jurisdiction of Sheet Metal Workers Local Union,
No. 332, AFL-CIO.
2. Sheet Metal Workers Local Union No. 332,
AFL-CIO, is not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require the
Employer to assign the above work to employees
who are represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers
Local Union No. 332, AFL-CIO, shall notify the
Regional • Director for Region 19 and the
Officer-in-Charge for Region 36, 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 assign the work in dispute
in a manner inconsistent with the above
determination.
'See Northwest Natural Gas Company. 163 NLRB 56.