Sheet Metal Workers, Local 12

National Labor Relations Board - Board DecisionsApr 25, 1973

203 N.L.R.B. 141 (N.L.R.B. 1973)

SHEET METAL WORKERS , LOCAL 12 141 Sheet Metal Workers ' International Association, Local 12, AFL-CIO and Builders Association of Eastern Ohio and Western Pennsylvania and A . A. Samuels Sheet Metal Co., Inc. , of Pennsylvania and A. A. Samuels Sheet Metal Company, Inc. and Sheet Metal Workers' International Association , Local 5, AFL-CIO. Case 6-CD-457 April 25, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Builders Association of Eastern Ohio and Western Pennsylvania, the bargaining agent for A. A. Samuels Sheet Metal Co., Inc., of Pennsylvania and A. A. Samuels Sheet Metal Company, Inc. (here- in collectively referred to as the Employer), alleging that Sheet Metal Workers' International Association, Local 12, AFL-CIO (herein referred to as Local 12), has violated Section 8(b)(4)(D) of the Act. On Octo- ber 24, 1972, a hearing was held before Hearing Offi- cer F. J. Surprenant. The Employer and Local 12 appeared at the hearing where they were afforded the opportunity to present evidence bearing on the issues. Sheet Metal Workers' International Association, Lo- cal 5, AFL-CIO (herein referred to as Local 5), did not enter an appearance or otherwise participate in the hearing, although it was duly served with a copy of the Board's notice of hearing. Thereafter the case was transferred to the Board for its determination. The Employer filed a brief with the Board which has been duly considered. 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 rul- ings made at the hearing and finds that they are free of prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER A. A. Samuels Sheet Metal Co., Inc., of Pennsylva- nia, a Pennsylvania corporation, and A. A. Samuels Sheet Metal Company, Inc., an Ohio corporation, with places of business at Erie, Pennsylvania, and Youngstown, Ohio, respectively, are engaged in the fabrication and installation of heating and ventilating duct work. The two corporations are affiliated, with common ownership, common officers, and common labor policy, and constitute a single integrated enter- prise. During the past 12-month period, A. A. Sam- uels Sheet Metal Co., Inc., of Pennsylvania purchased directly from outside the Commonwealth of Pennsyl- vania goods and materials valued in excess of $50,000 for use in the Commonwealth of Pennsylvania. Dur- ing the same period, A. A. Samuels Sheet Metal Company, Inc., purchased directly from outside the State of Ohio goods and materials valued in excess of $50,000 for use in the State of Ohio. The parties stip- ulated, and 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. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 12 and Local 5 are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. The Work in Dispute The work in dispute is the fabrication of the straight duct work which is to be installed at the Welch Foods , Incorporated, facility in northeast Pennsylvania. B. Background and Facts of the Dispute The Employer has a collective-bargaining agree- ment with Local 5 covering the employees employed at its Youngstown plant and a separate agreement with Local 12 covering its Erie plant employees. Over a period of several years, the Employer has assigned the bulk of the work of fabricating straight duct for projects in Local 12's geographic jurisdictional area to employees at the Youngstown shop where it has a special machine which can fabricate the duct with about one-tenth of the labor that would be required to perform it by hand. Throughout this period Local 12 frequently objected to the assignment of such work to the Youngstown employees. During the past 5 years Local 12 began taking overt steps to prevent the installation of the straight metal duct fabricated in Youngstown by stopping work or threatening to stop work on several projects to force the Employer to assign the disputed work to the employees represented by it. Local 12 claims that until the last 5 years em- ployees it represented at the Erie shop had enough 203 NLRB No. 23 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work to keep them busy, but in recent years the amount of work has diminished to the point where, just prior to the hearing, the Employer had laid off some of the Erie shop employees. The immediate dispute arises out of the Employer's assignment to the employees at the Youngstown loca- tion of the fabrication of the straight sheet metal ducts to be installed at a plant operated by Welch Foods, Inc., in northeast Pennsylvania, within the geographic jurisdiction of Local 12. The Employer assigned the fabrication of the sheet metal fittings and some risers to the Erie employees but assigned the fabrication of the straight metal sheet ducts to the Youngstown em- ployees. When the Youngstown employees had com- pleted the fabrication of the straight duct, it was shipped to the Erie shop for installation at the jobsite. The business representative of Local 12 advised the Employer that the material would not be installed. Thereafter the Erie employees represented by Local 12 refused to install the straight duct fabricated at the Youngstown shop, and the instant charge was filed. Following a petition for an injunction under Section 10(1) of the Act, an agreement was reached to resume the work at the Welch Foods jobsite pending the hold- ing of the 10(k) hearing. C. Contentions of the Parties Local 12 essentially contends that no jurisdictional dispute exists within the meaning of Section 10(k) of the Act, since Local 5 has disclaimed any dispute over the work. Furthermore, Local 12 argues that the mat- ter is a contract dispute between it and the Employer and the Board should defer the dispute to the volun- tary procedures agreed upon by the parties. The Employer argues that a jurisdictional dispute is raised by the instant facts and that deferral is not appropriate under the dispute resolution procedures in its contract with Local 12 since Local 5 is not a party to that agreement. The Employer further claims that the factors of past practice and economy support its assignment of the work to its employees repre- sented by Local 5. The Employer also requests that the Board's determination of this dispute be made effective for the entire area under the jurisdiction of Local 12. D. Applicability of the Statute Before the Board may proceed with the 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. The record shows that in late July 1972, the busi- ness representative of Local 12 told the Employer's supervisor and employees at the Erie location that the straight metal duct fabricated at Youngstown was not to be unloaded or installed. Thereafter the Erie em- ployees represented by Local 12 refused to install the straight duct which had been fabricated at Youngs- town for the Welch project, claiming the fabrication of the straight duct belonged to them. On these facts, we are satisfied that Local 12 refused to handle or work on the straight duct fabricated at Youngstown with an object of forcing the Employer to assign the disputed work to employees represented by it rather than to the Employer's Youngstown employees repre- sented by Local 5. Accordingly, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred.' Local 12's contention that no jurisdictional dispute exists since Local 5 disclaims the disputed work is without merit. In this regard the Board has held that such disclaimers are ineffective where, as here, the employees represented by the disclaiming organiza- tion continue to perform the disputed work .2 With respect to Local 12's contention that the Board defer to the contractually agreed-upon dispute settlement procedures, it does not appear that it is appropriate in the present situation to quash the no- tice of hearing . First, the record fails to establish that all parties are bound to the same settlement proce- dures, and does not show whether Local 5 is bound to any settlement procedure.' Second, even if the rec- ord did show that all the parties were bound by the procedure set forth in article X of Local 12' s agree- ment with the Employer,4 that procedure does not appear to cover a jurisdictional dispute arising be- tween sister locals of the Sheet Metal Workers, as here presented. While article I, section I of that agreement states that the agreement covers, in addition to the work specifically mentioned therein, "all other work included in the jurisdictional claims of the Sheet Met- al Workers' International Association," article II pro- vides for the subcontracting of certain work by the i Our dissenting colleague disagrees He would quash the notice of heanng, inter alga, on the basis that Local 12 was "claiming fairly claimable unit work " The facts are clearly to the contrary, inasmuch as the evidence estab- lishes that the work in dispute has with rare exception been performed by the Employer's employees at its Youngstown plant . See New York Paper Cutters' & Bookbinders ' Local Union No 119, etc (Automatic Sealing Service, Inc ), 146 NLRB 435 2 See , e.g., Laborers International Union of North America, Local 935, AFL- CIO (International Drywall, Inc), 191 NLRB 467, Local 926, International Union of Operating Engineers (High Point Sprinkler Company of Atlanta), 191 NLRB 603. 7 The record does not contain the agreement between the Employer and Local 5 4 Art X of the agreement between the Employer and Local 12 provides for a four -step procedure for settling contractual disputes between the parties, culminating in a final and binding determination (except in case of deadlock) by the National Joint Adjustment Board established by the Sheet Metal Workers' International Association and the Sheet Metal and Air Condition- ing Contractors' National Association SHEET METAL WORKERS , LOCAL 12 Employer, including prefabrication , provided the Youngstown employees represented by Local 5. Employer agrees to pay the employees engaged in such fabrication the prevailing wage for comparable sheet metal fabrication. Local 12 does not contend that the Employer is paying the Youngstown employ- ees represented by Local 5 less than the prevailing wage for comparable sheet metal fabrication.' In any event, Local 12 does not contend, and the Employer specifically denies, that the Employer ever evinced an unequivocal intent to be bound by the intraunion method of jurisdictional dispute settlement .6 For these reasons, the present case is clearly not an appropriate one to quash the notice of hearing because of private dispute settlement procedures' 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 all relevant factors . Certain fac- tors traditionally considered by the Board in making jurisdictional awards are not present in this proceed- ing. Thus, the record does not show certification by the Board or jurisdictional awards by joint boards. Similarly, there has been no showing that employees represented by either local possess special skills, or even whether any special skills are required in the performance of said work . The record does, however, contain evidence of the following factors to which we can look in making a determination: 1. Past practice and assignment The record shows that since at least 1961, the Em- ployer has assigned the bulk of the work of fabricating straight duct, without regard to where the order for the duct originated, to its employees at the Youngs- town shop represented by Local 5. While there is some evidence in the record that on occasion the Employer assigned this work to its employees at the Erie shop in order to keep them busy during slack times, it ap- pears that such assignments were the exception rather than the rule. Thus, the Employer's assignment in the instant dispute appears to be consistent with its past practice. Accordingly, we find past practice and the Employer's assignment are factors favoring the 5 In fact , it would appear that the Employer's contract with Local 5 would establish the prevailing wage to be used in applying this section of the agreement to subcontractors in Ohio. 6 See Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. I of Tennessee (Shelby Marble & Tile Co), 188 NLRB 148. r Cf. Building Material & Construction Teamsters Union Local 216 (Bigge Drayage Company), 198 NLRB 1052, where the Board deferred under cir- cumstances where the record showed that all the parties were bound by the same procedure and the contracts clearly provided for the resolution of such intraunion disputes. 2. Economy 143 It is uncontradicted that the machine located at the Youngstown location can produce the straight duct in one-tenth of the labor time it takes to fabricate the straight duct at the Erie location or elsewhere. Ac- cordingly, the factor of economy favors the Employer's assignment to its Youngstown employees, represented by Local 5. 3. Collective-bargaining agreements Local 5's agreement with the Employer is not con- tained in the record . However , Local 12's agreement with the Employer is in evidence and that contract specifically allows the Employer to subcontract the work in dispute as long as the subcontractors "pay their employees engaged in such fabrication not less than the prevailing wage for comparable sheet metal fabrication." Local 12 does not contend that the Em- ployer is paying the Youngstown employees less than the prevailing wage. We find, therefore, the Employer's agreement with Local 12 is not inconsis- tent with its assignment of the disputed work to the Youngstown employees. Consequently, on the basis of the entire record, we shall determine the instant jurisdictional controversy by awarding fabrication of straight duct which is to be installed at the Welch Foods, Inc., facility in north- east Pennsylvania to the employees at the Employer's Youngstown, Ohio, shop represented by Local 5, rath- er than to the employees at the Employer's Erie, Penn- sylvania, shop represented by Local 12. Scope of Determination As previously noted, the Employer requested in its brief that 'the Board's determinations herein apply to the entire area of Local 12's jurisdiction. In the past, in circumstances where there is an indication that the dispute is likely to recur, it has been the Board's policy to make its award broad enough to cover likely future disputes between the same parties. Although the rec- ord here shows that Local 12 has in the past threat- ened to stop work on several projects of the Employer, this is the first dispute to be litigated by the parties; and although Local 12 was also claiming the disputed work at another Employer project at the time of the hearing, there is no indication that Local 12 will con- tinue to claim such work in the future. Accordingly, we will limit the determination to the particular con- troversy which gave rise to this proceeding.8 Plasterers Local Union No 79, Operative Plasterers and Cement Masons Continued 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of A. A. Samuels Sheet Metal Com- pany, Inc., at its Youngstown, Ohio, shop, who are represented by Sheet Metal Workers' International Association, Local 5, AFL-CIO, are entitled to per- form the work of fabricating straight duct work for the Welch Foods, Inc., project. 2. Sheet Metal Workers' International Association, Local 12, AFL-CIO, is not entitled by means pros- cribed by Section 8(b)(4)(D) of the Act to force or require A. A. Samuels Sheet Metal Co., Inc., of Penn- sylvania and A. A. Samuels Sheet Metal Company, Inc., to assign the above-described work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers' International Association, Local 12, AFL-CIO, shall International Association of Houston, Texas (Southwestern Construction Com- pany), 167 NLRB 185; compare Local 299, Sheet Metal Workers (Metalab Equipment Co), 173 NLRB 1329 notify the Regional Director for Region 6, in writing, whether or not it will refrain from forcing or requiring A. A. Samuels Sheet Metal Co., Inc., of Pennsylvania and A. A. Samuels Sheet Metal Company, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to its members, rather than to employees of A. A. Samuels Sheet Metal Compa- ny, Inc., represented by Sheet Metal Workers' Inter- national Association, Local 5, AFL-CIO. MEMBER FANNING , dissenting: I would quash the notice of hearing in this case. The record shows that this Employer, under contract to two local unions, both affiliated with the same Inter- national Union, has committed itself to resolve con- tractual disputes through an Adjustment Board, jointly established and maintained in the Sheet Metal Industry by the Sheet Metal International Union and the Association of Sheet Metal Contractors. More- over, Local 12 claims that the work in dispute is locat- ed within its territorial jurisdiction and should be performed as unit work under the Employer's con- tract by employees whom it represents. I agree that Local 12 is claiming fairly claimable unit work. Ac- cordingly, I find (1) that the parties have an agreed- upon method of resolving this dispute through their National Joint Adjustment Board and (2) that, in any event, Local 12 has a primary claim to this work.