Local Union No. 67 of the Sheet Metal Workers, Local No. 3106

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 144 (N.L.R.B. 1970)

144 DECISIONS OF NATIONAL
Local Union No. 67 of the Sheet Metal Workers In-
ternational Association and General Supply Co.,
Inc. and Shop , Mill and Industrial Workers Local
Union No. 3106 , United Brotherhood of Carpen-
ters and Joiners of America . Case 23-CD-226
June 30, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN , AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by General Supply Co , Inc.
(herein the Employer), alleging that Local Union
No. 67 of the Sheet Metal Workers International
Association (herein the Respondent or Sheet Metal
Workers) violated Section 8(b)(4)(D) of the Act.
A duly scheduled hearing was held before Hearing
Officer Robert G. Levy II on February 25, 1970.
Shop, Mill and Industrial Workers Local Union No.
3106, United Brotherhood of Carpenters and
Joiners of America (herein the Carpenters), ap-
peared at the hearing. All parties were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
upon the issues. Thereafter, the Respondent filed a
brief.
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
powers in connection with this case 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 af-
firmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated as follows.
The Employer, General Supply Co., Inc., is a
Texas corporation with its principal office and
place of business in San Antonio, Texas, where it is
engaged in the wholesaling, distribution, manufac-
turing, and erection of hard products and structural
steel framework. During the past 12 months, the
Employer has purchased goods, materials, and sup-
plies valued in excess of $50,000, which were
manufactured outside the State of Texas and
shipped to the Employer at its San Antonio, Texas,
location. We find that the Employer is engaged in
LABOR RELATIONS BOARD
commerce within the meaning of the Act, and that
it will effectuate the purposes and policies of the
Act to assert jurisdiction herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the
Sheet Metal Workers and the Carpenters are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background of the Dispute
The Employer, as a subcontractor for Lyda, Inc.,
is engaged in the performance of a contract for the
installation of roof decking for several new
buildings at San Antonio State Hospital. The entire
job consists of laying corrugated metal sheets of
less than 10-gauge thickness over structural roof
members, welding the same to the roof members,
covering the sheets with reinforcing wire mesh, and
pouring concrete aggregate over the wire mesh. A
10-man crew performs this job.
The work in dispute involves that portion of the
total job which concerns the layout of the metal
sheets and the welding thereof to the structural
decking members. Three of the ten-man crew, in-
cluding a welder, perform this work.
Work on the job commenced in early January
1970. On January 8 the Respondent's business
agent arrived at the jobsite and determined that the
three employees engaged in laying and welding the
metal sheets were not members of, or represented
by, the Respondent. He then told representatives of
both Lyda and the Employer that the roof decking
work belonged to the Respondent. The Employer
advised him that there were 16 metal sheets yet to
be laid on one unit and that it would hold off work
on another unit until the Respondent contacted its
International. No word having been received from
the Respondent, the Employer resumed work on
January 12. Picketing began the same day and con-
tinued until January 15, 1970. The picket sign read:
General Supply Co., Inc. pays its employees
substandard wages*
We protest the payment of sub-standard
wages-Sheet Metal Workers Local 67,
AFL-CIO
*Wages below prevailing wage rates as
established by the federal government.
184 NLRB No. 17
LOCAL UNION NO. 67 OF THE SHEET METAL WORKERS , LOCAL No. 3106 145
On January 15, the Employer left the job, and
picketing ceased . Another firm completed the work
on the second unit , which involved the installation
of approximately 17,000 cubic feet of roof deck
material from January 29 through February 9, for a
total of 98 man hours . The Employer performs
work requiring two men at 2 man -days per building.
When the Employer again returned to the job,
picketing resumed on February 17 and continued
on February 18 and 20 . Rainy weather precluded
picketing on February 19.
B. The Work in Dispute
tion Co .),' the Board set forth the following criteria
to be considered in making an affirmative award in
a 10(k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in
dispute , e.g., the skills and work involved, cer-
tifications by the Board , company and industry
practice , agreements between unions and
between employers and unions , awards of ar-
bitrators , joint boards , and the AFL-CIO in the
same or related cases , the assignment made by
the employer , and the efficient operation of
the employer 's business.2
The dispute concerns the laying of corrugated
sheet metal plates on structural roof members and
the welding of the sheets to the members.
C. The Contentions of the Parties
The Respondent Sheet Metal Workers only con-
tention is that the work in dispute should be
awarded to employees that it represents . The Em-
ployer formally contends only that there is reasona-
ble cause to believe that a violation of Section
8(b)(4)(D ) of the Act occurred, and that the
dispute is therefore properly before the Board for
determination under Section 10(k) of the Act. The
Carpenters takes no position.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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. It is clear from the record that the Em-
ployer made an assignment of the work in dispute
to its own employees and that the Respondent en-
gaged in picketing in order to require the assign-
ment of that work to workers represented by the
Respondent , thus clearly establishing a prima facie
case supporting the alleged violation of Section
8(b)(4)(D)
E. Merits of the Dispute
Section 10 ( k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to all relevant fac-
tors. In International Association of Machinists,
Lodge No. 1743, AFL-CIO (J. A. Jones Construc-
1. Work and skills involved
Of the three men who perform the work in
dispute , two are engaged in laying the sheet metal
plates and the third in welding them . Two of the
10-man crew can perform the welding work. The
Respondent contends that employees are qualified
to perform the disputed work after a 4-year sheet
metal worker apprentice training program. The
Employer contends that whatever specialized skills
its employees possess in performing the disputed
work are obtained primarily through on-the-job ex-
perience , and that employees in various other
crafts, including carpenters , laborers , ironworkers,
and unrepresented employees , perform similar
welding work.
2. Efficiency of operation
The Respondent argues that the Employer might
affect economics in assigning the disputed work to
the Respondent, due to the fact that the Employer's
wage scale is higher than that of the Respondent.
Otherwise, there is little or no cogent evidence as
to whether or not an assignment of the work to the
Respondent would promote efficiency in the Em-
ployer's operations.
3. Company and industry practice
Since 1950 the Employer has hired un-
represented employees to perform the disputed
work in the San Antonio area . The Employer per-
forms approximately half of this work in that area,
while the firms which employ employees
represented by the Respondent perform the other
half.
135 NLRB 1402
'Id at 1410-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Agreements between the Company and Unions
The employees engaged in performing the
disputed work are represented by the Carpenters
when thay work in the shop. However, the current
contract between the Employer and the Carpenters
specifically excludes them when they perform the
disputed work outside the shop.
5. Board certifications
On November 20, 1967, the Regional Director
for Region 23 issued a Decision and Clarificaton of
Bargaining Unit3 in a certified unit of the Em-
ployer's production and maintenance employees at
Austin, Texas, in which he specifically excluded,
inter-alia, from the unit all employees engaged in
the outside erection of structural steel, in accord
with the terms of an agreement between Carpenters
Local No. 14 and the Austin Iron Workers Local
66, reached as part of the hearing in that case,
whereby the Iron Workers Local would perform the
metal from installation work on roof decking jobs
in Austin.
6. Other agreements
The record indicates that an informal verbal
agreement, antedating the instant hearing by a year
and a half, exists between Local Union 66 of the
Iron Workers in San Antonio and the Respondent
whereby structural steel is to be installed by the
Iron Workers and roof decking material by the
Sheet Metal Workers. The Internationals of the two
Unions did not participate in the agreement.
7. National Joint Board awards
The Respondent adduced at the hearing a
number of National Joint Board awards, including
Green Book awards, of roof decking installation
work, to the Sheet Metal Workers in other areas of
the United States. There is no evidence of agree-
ments among the parties for the submission of work
disputes to the National Joint Board.
Conclusions
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we be-
lieve that the assignment of the work in dispute to
the employees of the Employer should not be
disturbed. We shall therefore determine the dispute
before us by awarding the laying corrugated metal
sheets of less than 10-guage thickness over struc-
tural roof decking members and the welding of the
same thereto to the unrepresented employees of
General Supply Co., Inc. This determination is
limited to the particular controversy giving rise to
this dispute.
3 General Supply Co , Inc , Case 23-UC-23, unpublished
DETERMINATION OF 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 Rela-
tions Board hereby makes the following Determina-
tion of Dispute:
1. The unrepresented employees of General
Supply Co., Inc., are entitled to perform the work
of laying corrugated metal sheets of less than 10-
gauge thickness over structural roof decking mem-
bers and welding them to the members.
2. Local Union No. 67 of the Sheet Metal Work-
ers International Association are not and have not
been entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require General
Supply Co., Inc., to assign the above work to its
members.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No. 67
of the Sheet Metal Workers International Associa-
tion shall notify the Regional Director for Region
23, in writing, whether they will or will not refrain
from forcing or requiring General Supply, by means
proscribed by Section 8(b)(4)(D), to assign the
work in dispute to employees represented by the
Sheet Metal Workers rather than General Supply's
unrepresented employees.