B & W Metal Co., Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1977

231 N.L.R.B. 122 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association,
Local Union No. 41, AFLCO11 (B & W Metals
Company, Inc.) and Metal Polishers, Buffers,
Platers and Allied Workers International Union,
Local No. 68, AFL-CIO. Case 25-CD-172
August 4, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on December 13, 1976, by Metal
Polishers, Buffers, Platers and Allied Workers Inter-
national Union, Local No. 68, AFL-CIO, hereinafter
called Metal Polishers, alleging that Sheet Metal
Workers' International Association, Local Union
No. 41, AFL-CIO, hereinafter called Respondent or
Local 41, has violated Section 8(b)(4)(D) of the Act
by threatening, coercing, and restraining B & W
Metals Company, Inc., hereinafter called the Em-
ployer or B & W, with an object of forcing or
requiring the Employer to assign certain work to
employees represented by the Respondent rather
than to employees represented by the Metal Polish-
ers.
Pursuant to notice, a hearing was held before
Hearing Officer Arthur G. Lanker on February 16,
1977. Respondent and Metal Polishers 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. Thereafter,
Respondent and Metal Polishers filed 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
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs of Respondent and Metal Polishers, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer, an Ohio
corporation, has its principal offices in Fairfield,
Ohio. It is engaged in the business of manufacturing
and installing stainless steel food servicing equip-
ment. In the operation of its business, the Employer
I The names of the Unions appear as amended at the hearing.
2 We hereby correct the Hearing Officer's inadvertent error in using
231 NLRB No. 17
annually receives goods and materials from outside
the State of Ohio2 valued in excess of $50,000.
Accordingly, we find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Sheet
Metal Workers and Metal Polishers 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 grinding, buffing, and
polishing of weld seams on stainless steel food-
servicing equipment at the Hyatt Regency jobsite in
Indianapolis, Indiana.
B. Background
B & W is engaged in the design, manufacture, and,
to some extent, installation of custom food service
equipment. At its plant in Fairfield, Ohio, the
Employer manufactures equipment, such as tables,
sinks, dishwashing equipment, service counters, and
ventilation hoods.
Since its beginning in 1947, the Employer has had
its production employees represented in two separate
units, one represented by Local 224 of the Sheet
Metal Workers' International Association, hereinaf-
ter called Local 224, and the other represented by
Metal Polishers. Members of Local 224 do the
notching, shear work, break work, layout work,
welding bending, and assembling of the equipment.
Members of Metal Polishers are responsible for the
grinding, buffing, and polishing of the equipment.
The Employer has collective-bargaining agreements
with Metal Polishers and, through an association,
with Local 224.
In mid-1975, the Employer was granted a contract
to install kitchen equipment at the Hyatt Regency
House in Indianapolis, Indiana. The jobsite was
within the territorial jurisdiction of Respondent. In
November 1976, the Employer sent two of its sheet
metal workers, William Hancock and Joseph Tucker,
members of Local 224, to perform the necessary
"Indiana" rather than "Ohio" when reading the commerce stipulation into
the record.
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SHEET METAL WORKERS', LOCAL 41
welding on the kitchen equipment being installed at
the Hyatt House. 3 On November 18, 1976, the
Employer sent John Michel, a member of Metal
Polishers, to do the grinding and polishing of welds
on the equipment being installed at the Hyatt House
job.
When Michel arrived at the jobsite, he looked up
Hancock and told him that he had come to do the
polishing. Hancock stated that he would have to
inform the union steward (i.e., the steward for Local
41) that Michel had arrived to do the work.
According to Michel, Billy Ginn, union steward for
Local 41, then came over, took his name, and stated
he must call the business agent for Local 41. Shortly
thereafter, again according to Michel, Ginn returned
and stated that he (Michel) was not going to do the
work with the union card that he carried. According
to Michel, he understood that "the sheet metal
workers wouln't let me work." Michel testified that
Ginn informed him that he could not work because
Metal Polishers was not a part of the building trades.
According to Ginn, he only informed Michel that
Local 41 had men qualified to do the work and that
that kind of work (i.e., polishing) was done by
members of their local. Ginn denied that he told
Michel he could not work because Metal Polishers
was not a part of the building trades.
After speaking with Ginn, Michel called Jim
Watson, the business agent for Metal Polishers.
Watson stated he would make some phone calls on
Michel's behalf, but he did not call back. Thereupon,
Michel called Wedendorf, the Employer's president.
Wedendorf informed Michel that he should remain
at the jobsite until 2 or 3 p.m. to see what happened
and, thereafter, if the matter was not resolved, come
home. Michel did not work that day and that
afternoon returned to the plant in Fairfield.
Because of the aforementioned situation, the
Employer was unable to complete the work and,
about mid-January 1977, another contractor was
used to perform the grinding and polishing.
C. Contentions of the Parties
Metal Polishers contends that the work in dispute
has traditionally been assigned to its members by the
Employer and that the collective-bargaining agree-
ments, company practice, and skills and efficiency
favor the work being awarded to them. Metal
Polishers argues that this case is nearly identical to
Sheet Metal Workers' International Association, Local
Union No. 141, AFL-CIO, 179 NLRB 995 (1969),
involving the same employer, the same or similar
work in dispute, and a dispute between Metal
:' B & W's contract with Local 224 provides that when B & W performs
work within an area covered by another agreement (i.e., within the territory
Polishers and a local of Sheet Metal Workers. In that
case, the Board awarded the work in dispute to Metal
Polishers, and Metal Polishers argues that the same
result is dictated here.
Respondent contends that there is no reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred. It admits to claiming the work in
dispute but denies that it threatened, coerced, or
restrained anyone in order to have the work assigned
to it. On the merits of the dispute, it alleges that the
collective-bargaining agreements, skills and efficien-
cy, and especially area practice favor the work being
awarded to its members.
D. Applicability of the Statute
Before the Board may proceed to a determination
of dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8(bX4XD) has been violated and
that there is no agreed-upon method for the
voluntary settlement of the dispute.
As to the former, it is clear that both Unions are
disputing the assignment of the work of grinding and
polishing the weld seams on stainless steel food-
servicing equipment at the Hyatt Regency jobsite.
Contrary to Respondent's contention, we are satis-
fied that Michel's testimony supports a reasonable
belief that Respondent-through its steward, Ginn-
did, in fact, coerce and restrain Michel with an object
of forcing the Employer to assign the work in dispute
to members of Respondent. Michel had traveled
from Fairfield, Ohio, to Indianapolis, Indiana, in
order to perform the grinding and polishing on the
equipment being installed by the Employer. It is
clear that Michel, after speaking with Ginn, did not
perform the work in dispute and we are doubtful that
he, having traveled a good distance, would have
refrained from doing the work solely because
Respondent had expressed a claim that it was
entitled to do the work in dispute. Ginn's statements
reasonably conveyed to Michel that he could suffer
consequences from attempting to do the work, and
Michel's failure to risk challenging Ginn (by attempt-
ing to work) to determine what Local 41 would do
does not render our finding of reasonable cause
inappropriate.
After learning that Respondent would not let him
do the work, Michel-as was reasonably foresee-
able-informed the Employer that he was being
prevented from performing the work. Thus, Respon-
dent Union's action of preventing Michel from
working gives rise to a reasonable cause to believe
that a violation of the Act has occurred and that the
of another local of the Sheet Metal Workers) it is permitted to send no more
than two of its own employees-sheet metal workers-to perform the work.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute is properly before the Board for determina-
tion.
As to the latter, there is no evidence that all the
parties herein have an agreed-upon method for the
voluntary settlement of the dispute.
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.
i. Collective-bargaining agreements
The Employer has current collective-bargaining
agreements with Metal Polishers and with Local 224
of Sheet Metal Workers.
The Employer's contract with Metal Polishers
states that that Union is "sole and exclusive
bargaining representative of all Metal Polishers,
Buffers, Platers, and their Helpers in the employ of
the company." Respondent, of course, has no
contract with the Employer, but it argues that it is the
third-party beneficiary of Local 224's contract.
Assuming this to be true, it is nonetheless clear that
all parties to the contracts have-since the beginning
of B & W-interpreted the contracts to provide, and
implemented them as providing, that the metal
polishers do the grinding, buffing, and polishing of
the weld seams on the Employer's equipment.
Accordingly, we find that the collective-bargaining
agreements weigh in favor of awarding the work to
employees represented by Metal Polishers.
2. Company practice
Don Barnhill, vice president of B & W, testified
that the Employer's practice has always been-for
both inside and outside work-to have metal
polishers perform the grinding, buffing, and polish-
ing. Thus, company practice clearly weighs in favor
of awarding the work to employees represented by
Metal Polishers.
3. Area practice
Evidence presented by Respondent-especially the
testimony of Joseph O'Neill, Respondent's business
agent-indicated that in Indianapolis, Indiana, the
work of grinding and polishing is normally per-
formed by members of Local 41. There was disputed
testimony as to whether a local of Metal Polishers
exists in Indianapolis and whether members of Metal
Polishers had ever performed the work in dispute
previously in the Indianapolis area. It would appear
that the area practice in Indianapolis favors award-
ing the work to Respondent. However, when a job
has been awarded to an employer from another State
or another area and that employer uses its own
employees in performing the work, the area practice
prevalent where the jobsite is located cannot be
considered determinative.
4. Skills and efficiency of operation
Barnhill testified that, among B & W's employees,
only members of Metal Polishers have the requisite
skills to perform the work in dispute. Similarly,
Barnhill testified that it is generally more efficient for
the Employer to use metal polishers to perform the
grinding and polishing. However, Respondent's
witnesses testified that, at least in the Indianapolis
area, sheet metal workers are skilled in the grinding
and polishing of weld seams. Further, Respondent's
witnesses stated that, in Indianapolis, it would be as
efficient to use members of Local 41 and that, by so
doing, travel expenses from Fairfield, Ohio, to
Indianapolis would be eliminated.
Based on this evidence, it appears that both groups
of workers possess the requisite skills to perform the
work in dispute and that both groups could perform
the work with equal efficiency. Accordingly, the
factors of skills and efficiency of operation favor
neither group and are neutral in resolving the dispute
before us.
Conclusion
Having considered the pertinent factors present
herein, we conclude that employees who are repre-
sented by Metal Polishers are entitled to perform the
work in dispute. This assignment is consistent with
the Employer's initial assignment, the collective-
bargaining agreements, and company practice. Skills
and efficiency of operation favor neither group. As
heretofore noted, the area practice in Indianapolis,
Indiana, would appear to favor awarding the work to
Respondent, but this single factor, under the circum-
stances herein, is neither determinative nor sufficient
to outweigh the factors favoring awarding the work
to employees represented by Metal Polishers. In
making our determination, we are awarding the work
in question to employees represented by Metal
Polishers, but not to that Union or its members. This
determination is limited to the particular controversy
giving 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 factors in the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
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SHEET METAL WORKERS', LOCAL 41
1. Employees employed by B & W Metals
Company, Inc., who are represented by the Metal
Polishers, Buffers, Platers and Allied Workers Inter-
national Union, Local No. 68, AFL-CIO, are
entitled to perform the work of grinding, buffing, and
polishing weld seams on stainless steel food-servicing
equipment at the Hyatt Regency House jobsite in
Indianapolis, Indiana.
2. Sheet Metal Workers' International Associa-
tion, Local Union No. 41, AFL-CIO, is not entitled
by means of conduct proscribed by Section
8(b)(4)(D) of the Act to force or require B & W
Metals Company, Inc., to assign the aforementioned
work to its members.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers'
International Association, Local Union No. 41,
AFL-CIO, shall notify the Regional Director for
Region 25, in writing, whether or not it will refrain
from forcing or requiring B & W Metals Company,
Inc., by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the work in dispute to employees
represented by Sheet Metal Workers' International
Association, Local Union No. 41, AFL-CIO, rather
than employees represented by Metal Polishers,
Buffers, Platers and Allied Workers International
Union, Local No. 68, AFL-CIO.
CHAIRMAN FANNING, dissenting:
On the record before me, I am not satisfied that
there is reasonable cause to believe that any violation
of the Act has occurred. When metal polisher Michel
arrived at the jobsite in Indianapolis, he was
allegedly told by Local 41's union steward that he
(Michel) was not going to do the work with the union
card he carried. However, there is no indication that
Ginn threatened Michel (or B & W) with any
consequences should Michel perform the work in
dispute. Michel never began or attempted to begin
performing the work in dispute. Rather, he merely
reported to his Union's business agent and his
employer that he had been told he was not to do the
work.
In my judgment, the evidence here is too tenuous
to support a reasonable belief that a violation has
occurred. Ginn's statement was ambiguous and
appears more in the nature of a claim to the work
than a threat of consequences should the work not be
done by a sheet metal worker. As in United Mine
Workers of America, Local Union 1368 (Bethlehem
Mines Corporation), 227 NLRB 819 (1977), where the
Board found that a statement that there was a
"potential for problems" in an employer's assign-
ment of work was too ambiguous to support a
reasonable belief that a violation occurred, I would
find here that Ginn's statement-even as reported in
Michel's testimony-falls short of establishing that
Michel was threatened, coerced, or restrained regard-
ing the work in dispute.
125