Local 89, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Aug 3, 1972

198 N.L.R.B. 683 (N.L.R.B. 1972)

LOCAL 89, SHEET METAL WORKERS 683
Local 89, Sheet Metal Workers International Associa-
tion , AFL-CIO and E. H. Sheldon and Company
and Local 215, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO. Case
25-CD-127
August 3, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Following the filing of a charge by E. H. Sheldon
and Company,' hereinafter referred to as the
Employer, on March 7, 1972, alleging a violation of
Section 8(b)(4)(D) of the National Labor Relations
Act, as amended, a hearing pursuant to Section 10(k)
of the Act was held before Hearing Officer David R.
Friedman on April 5, 6, and 7, 1972. The Employer
and the Sheet Metal 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. Thereafter,
briefs were filed by the Employer and Sheet Metal
Workers.
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 that they are
free from prejudicial error. They are hereby affirmed.
Upon the, entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE COMPANY
The parties stipulated, and we find, that E. H.
Sheldon and Company is an employer engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
and attaching the superstructures to laboratory
counters and bases in the Purdue University Chemis-
try Building, Lafayette, Indiana. The fume hood
superstructure, which is attached to a base cabinet, is
a component section of laboratory furniture. The
base cabinet and a soapstone cabinet top are
installed first; the fume hood superstructure, which is
asbestos, is installed last. After all components are
put in place, sheetmetal workers connect the fume
hood to the ventilation system. The Employer
assigned the work of installing all components of the
laboratory furniture to its employees represented by
Carpenters. Sheet Metal Workers claims that em-
ployees represented by it are entitled to the work of
installing the fume hoods but does not claim the
work of installing the base cabinets or the soapstone
tabletops for the base cabinets.
The Employer began sending laboratory furniture
to Lafayette in the latter part of 1971. The Employer
and Carpenters had an understanding that carpen-
ters would install the furniture. Early in the fall,
Sheet Metal Workers sought an award of the work
from the Employer. As these efforts were unsuccess-
ful, Sheet Metal Workers unilaterally requested the
National Joint Board to settle the question of the
Employer's assignment of the work to Carpenters.
On December 3, 1971, the National Joint Board
awarded the work to the Sheet Metal Workers. In
early February 1972, the Employer signed a contract
with Carpenters for installation of all components of
the laboratory furniture. Sheet Metal Workers'
business agent, Lonnie Allee, told the Employer's
installation superintendent, Douglas Barker, that
there would be a work stoppage if the Sheet Metal
Workers were not allowed to install the fume hoods.
On February 22 or 24, Allee told the Employer's
representative in a meeting at the jobsite that there
could be a picket line, and on February 28, he told
the Employer's installation manager, Bryan Fitzger-
ald, that he would "shut the job down." In another
meeting, on March 2, Allee told Fitzgerald that he
would put up an informational picket sign. On
March 6, the Sheet Metal Workers picketed the
The parties stipulated, and we find, that Sheet jobsite, which continued until March 16. With the
Metal Workers and Carpenters are labor organiza- exception of a few carpenters, all trades stayed off
tions within the meaning of the Act. the job. The Employer, on March 7, filed the instant
III.
A. Background
THE DISPUTE
and Facts Concerning the
Dispute
The work in dispute concerns the unloading,
moving, uncrating, raising, placing, and installing of
fume exhaust hoods and fume hood superstructures,
1 The other parties herein are referred to respectively as Sheet Metal
Workers and Carpenters
charge.
The record shows that the Carpenters and the
Sheet Metal Workers International Unions are
signatory to an April 1, 1971, agreement between the
Building and Construction Trades Department,
AFL-CIO, and the National Constructors Associa-
tion , which provides that questions of work assign-
ment be submitted to the National Joint Board for
198 NLRB No. 110
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settlement of jurisdictional disputes and shall be
binding on the parties. Also, on April 1, 1971,
Carpenters entered into an agreement with the
Associated Building Contractors in Indiana, which
includes a reference to the National Joint Board for
settlement of jurisdictional disputes. The Employer
became signatory to the agreement between Carpen-
ters and the Association in early February 1972 when
it assigned the disputed work to Carpenters. On
March 16, subsequent to the filing of the charge on
March 7, the Employer and Carpenters amended the
original agreement for the purpose of deleting the
jurisdictional clause, which, according to Sheet Metal
Workers, requires the Employer to submit work
disputes to the National Joint Board.
B. Contentions of the Parties
Sheet Metal Workers contends that the notice of
hearing should be quashed and the complaint
dismissed since all parties to this proceeding are
bound to abide by the procedures for the settlement
of jurisdictional disputes in the building and con-
struction industry , and, as the controversy in
question has been submitted to the National Joint
Board and a decision issued thereon , the complaint
should be dismissed . The Sheet Metal Workers
further claims that , if the Board proceeds to make a
determination of the dispute, it should give great
weight to the decisions of the National Joint Board
regarding the assignment of the disputed work. It
further claims that it has installed all types of fume
hoods throughout the area and is more qualified to
perform the work.
The Employer contends that all phases of fume
hood installation should be performed by carpenters
for the same reasons found controlling by the Board
in Local 299, Sheet Metal Workers International
Association, AFL-CIO (Metalab Equipment Co.), 173
NLRB 1329, namely: ( 1) the work assignment is
consistent with the past practice of the Employer,
and is not inconsistent with area practice, of
assigning the installation of the entire unit to the
carpenters ; (2) the assignment of the hood installa-
tion to the carpenters who install all the other
component sections of the furniture makes for
greater efficiency ; (3) the hood superstructures are
attached to the other furniture in the laboratory as
integral units ; (4) the work involves the basic skills of
carpentry ; and (5) the handtools necessary to
perform the work are those of the carpenter , not the
sheetmetal worker.
The Employer contends that it is under no
obligation to submit this dispute to the National
Joint Board and that there is no contractual
obligation of any kind which supports the Sheet
Metal Workers contention that it has contractually
bound itself to abide by the procedures for settle-
ment of jurisdictional disputes before the National
Joint Board.
C. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 there is no agreed-upon method for the
voluntary adjustment of the dispute.
The record testimony establishes that in early
February 1972, the Sheet Metal Workers business
agent, Lonnie Allee, told the Employer' s installation
superintendent, Douglas Barker, there would be a
work stoppage if the Sheet Metal Workers was not
assigned the disputed work; on February 22 or 24, he
told the Employer's representatives that there would
be a picket line; on February 28, he told the
Employer's installation manager, Bryan Fitzgerald,
that he would "shut the job down"; and, the Sheet
Metal Workers commenced picketing at the jobsite
on March 6 and continued picketing until March 16.
On these facts, we are satisfied that there is a
reasonable cause to believe that the Sheet Metal
Workers threatened to and did strike and that an
object of such action was to force the Employer to
assign the disputed work of installing the fume hoods
to individuals represented by Sheet Metal Workers
rather than to employees represented by Carpenters.
Contrary to the contention of Respondent, the
record does not clearly establish that the Employer
and Carpenters, pursuant to their collective-bargain-
ing agreement, are bound to the National Joint
Board. The only reference to the Joint Board is in
section 15 of the local Lafayette contract between
ABC and the Carpenters, which states that "All work
belonging to carpenters, covered in the Constitution
and laws of the United Brotherhood of Carpenters
and Joiners of America, set out in the Trade
Autonomy of the Constitution, shall be retained by
Local Union No. 215, unless by a decision of the
National Joint Board for Settlement of Jurisdictional
Disputes shall rule such work belongs to another
affiliated craft [sic]." This language, in our opinion,
does not clearly and unambiguously require a
relinquishment of the Employer's discretion over
work assignments by imposing an absolute require-
ment that it defer to Joint Board awards adversely
affecting Carpenters. Instead, that clause is suscepti-
ble to an interpretation that it was merely designed to
protect the Employer against claims by Carpenters
should the Employer unilaterally decide to recognize
a Joint Board award which is contrary to Carpenters
LOCAL 89, SHEET METAL WORKERS
interest. It does not by its terms require that either
party submit a particular jurisdictional dispute to the
National Joint Board for resolution but only, as
indicated, that Carpenters contractually protected
jurisdiction may be circumscribed by some past or
future Joint Board awards. In these circumstances,
we conclude the parties have not contractually
bound themselves to submit all jurisdictional dis-
putes to the Joint Board, and we therefore find that
this dispute is properly before the Board for
determination.2
On the basis of the entire record in this case, 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 determi-
nation.
D. Merits of the Dispute
Neither Sheet Metal Workers nor Carpenters has
been certified by the Board with respect to any
employee involved in the instant proceeding. The
Employer has a nationwide contract with Carpenters
under which it has agreed, inter aha, to recognize its
jurisdictional claims in the locality in which any
work of the Company is being done. Sheet Metal
Workers, however, has advanced no contractual
claim to the disputed work. The record testimony
shows that the Employer has consistently assigned
work of the type in dispute to carpenters. The
evidence indicates that the Employer, a nationwide
operation, consistently does so in spite of Joint
Board decisions to the contrary, and no evidence was
adduced showing that the Employer had ever
willingly assigned the disputed work to sheetmetal
workers.
The skills required to perform the disputed work
appear to be skills of the carpenter and not those of
the sheetmetal worker. The installation of the fume
hood requires that the base cabinet, to which it is
attached, be leveled and installed according to
customary carpentry methods; i.e., leveling, screw-
ing, bolting, and gluing. In view of these methods of
installing the fume hoods, it would be more efficient
if the base cabinet and the fume hood were installed
at the same time, by a single crew of carpenters,
instead of splitting the overall operation between two
crafts. Moreover, the tools required in the installa-
tion process are those of the carpenters.
E. Conclusions as to Merits of Dispute
Upon consideration of all pertinent factors in the
685
entire record, we shall not disturb the Employer's
assignment of the disputed work to carpenters. Sheet
Metal Workers has no contractual claim to the work.
The work requires the skills and tools of carpenters.
The Employer has consistently assigned work of the
type in dispute to carpenters, is satisfied with the
results, which show an efficiency and economy of
operation, and desires no change. Accordingly, we
shall determine the existing jurisdictional dispute by
deciding that carpenters represented by Carpenters,
rather than sheetmetal workers represented by Sheet
Metal Workers, are entitled to the work of unload-
ing, moving, uncrating, raising, placing, and install-
ing fume exhaust hoods and fume hood superstruc-
tures and of attaching the superstructures to labora-
tory counters and bases. In making this determina-
tion, we are awarding the work in question to
employees represented by Carpenters, but not to
Carpenters or its members. The present determina-
tion is limited to the particular controversy which
gave rise to this proceeding.
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
makes the following Determination of Dispute:
1. Carpenters who are represented by Local 215,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, are entitled to perform the work
of unloading , moving , uncrating, raising , placing,
and installing fume exhaust hoods and fume hood
superstructures and of attaching the superstructures
to laboratory counters and bases in the Purdue
University Chemistry Building , Lafayette , Indiana.
2. Local 89, Sheet Metal Workers International
Association , AFL-CIO, is not entitled , by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require E. H. Sheldon and Company to assign the
work in dispute to employees represented by the
aforesaid Union.
3. Within 10 days of the date of this Decision and
Determination of Dispute , Local 89, Sheet Metal
Workers International Association , AFL-CIO, shall
notify the Regional Director for Region 25, in
writing, whether or not it will refrain from forcing or
requiring E. H. Sheldon and Company , by means
proscribed by Section 8(b)(4)(D ) of the Act , to assign
the work in dispute to sheetmetal workers rather than
to carpenters.
2 See , e g , Sheet Metal Workers Union, AFL-CIO, Local No 4 (Varner
Construction Company, Inc), 198 NLRB No 17