Millwrights' Local Union No. 1357

National Labor Relations Board - Board Decisions

Sep 22, 1975

220 N.L.R.B. 491 (N.L.R.B. 1975)

MILLWRIGHTS ' LOCAL UNION NO . 1357 491
S
Millwrights' Local Union No. 1357, United Brother-
hood of Carpenters and Joiners of America , affiliat-
ed with AFL-CIO and Building Trades Council I
and Memphis Publishing Company 2 and Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 135 and
Local No. 167 of the International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO .2 Cases 26-CD-113 and 26-CD-118
September 22, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING , JENKINS , AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Memphis Publishing Company,
alleging that Millwrights' Local Union No. 1357,
United Brotherhood of Carpenters and Joiners of
America, affiliated with AFL-CIO and Building
Trades Council, herein called Millwrights, violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or re-
quiring George R. Hall, Inc., herein called Employer,
to assign certain work to employees represented by
Millwrights rather than to employees represented by
International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge No. 135,
herein called Machinists or District Lodge No. 135,
and Local No. 167 of the International Association
of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, herein called Iron Workers, respectively.
Pursuant to notice, a hearing was held before
Hearing Officer Melvin L. Ford on July 1-3, 1975.
The Employer, Millwrights, Machinists, and the In-
ternational Association of Machinists and Aerospace
Workers, AFL-CIO, a party in interest in this pro-
ceeding, 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, the Employer and Mill-
wrights filed briefs.
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 rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
The name of Respondent appears as amended at the hearing.
2 Iron Workers and Memphis Publishing Company, despite adequate no-
tice, entered no formal appearances at the hearing.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated to the following facts: The
Employer, a corporation with its principal office lo-
cated in Cleveland, Ohio, is engaged in business as a
contractor. During the 12 months preceding the
hearing it purchased and received at the Memphis,
Tennessee, jobsite goods and materials valued in ex-
cess of $50,000 directly from suppliers located out-
side the State of Tennessee.
Memphis Publishing Company, a corporation with
its principal place of business in Memphis, Tennes-
see, is engaged in the printing, distribution, and sale
of daily morning and evening newspapers. During
the 12 months preceding the hearing it had a gross
volume of business in excess of $200,000 and re-
ceived at its Memphis, Tennessee, location products
valued in excess of $50,000 from points located out-
side the State of Tennessee.
J. A. Jones Construction Company, a corporation
with its principal office in Charlotte, North Carolina,
is engaged in the construction business as a general
contractor. During the 12 months preceding the
hearing it has received at the Memphis, Tennessee,
jobsite goods and materials valued in excess of
$50,000 directly from points located outside the State
of Tennessee.
Accordingly, we find that the Employer, Memphis
Publishing Company, and J. A. Jones Construction
Company are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Mill-
wrights , Machinists, and Iron Workers are labor or-
ganizations within the meaning of Section 2 (5) of the
Act.
III. THE DISPUTE
A. Background and Facts
Sometime prior to the dispute, Memphis Pub-
lishing Company engaged J. A. Jones Construction
Company as its general contractor to construct a new
addition to its existing facility in Memphis, Tennes-
see. Thereafter, Memphis Publishing Company en-
tered into a contract with the Employer to install
newspaper printing presses and newspaper printing
220 NLRB No. 89
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant equipment, including a conveyor belt system pany in Memphis, Tennessee .4
and related items, within the pressroom and mail-
room of the addition to be constructed. Subsequent-
ly, upon the commencement of work at the Mem-
phis, Tennessee, jobsite, the Employer assigned the
work of unloading, rigging, and setting into position
the aforementioned equipment to employees repre-
sented by Iron Workers and assigned the assembly,
leveling, and precision work involved in the installa-
tion of such equipment to employees represented by
Machinists.
The parties stipulated, with respect to Case
26-CD-113, that on or about February 11, 1975,
O. K. Robinson, business representative of Mill-
wrights, orally informed Maurice C. Moore, project
manager for J. A. Jones Construction Company, and
William O. Smith, job superintendent for the Em-
ployer, that Millwrights claimed the work of install=
ing the printing presses at the Memphis Publishing
Company jobsite and, thereafter, established a picket
in support of that claim. With respect to Case
26-CD-118, the parties stipulated that on or about
June 3, 1975, Robinson orally informed both Moore
and Smith that Millwrights claimed the work then
being performed on the conveyor belt system and
related equipment and thereafter established a picket
bearing the following legend:
The conveyors and other machinery other than
printing presses being installed on this job by
George R. Hall, Inc. with machinists comes un-
der the jurisdiction of Millwrights Local Union
No. 1357.3
The parties further stipulated that Millwrights'
claims to the work and picketing in support thereof
in Cases 26-CD-113 and 26-CD-118, respectively,
give the Board reasonable cause to believe that Mill-
wrights has violated Section 8(b)(4)(D) of the Act.
B. The Work in Dispute
The work in dispute consists of the assembly, level-
ing, and precision work involved in the installation of
newspaper printing presses and newspaper printing
plant equipment, including a lap-stream conveyor
belt system and related items, within the addition to
the existing facility of the Memphis Publishing Com-
3 Subsequent to the filing of the charge in Case 26-CD-I 13, Millwrights
disclaimed that portion of the work involving the installation of the newspa-
per printing presses being performed at the ,lobsite by machinists and there-
after the charge in that case was withdrawn with the approval of the Re-
gional Director. However, following the filing of the charge in Case
26-CD- 118, Millwnghts withdrew its disclaimer , whereupon the Regional
Director rescinded his prior approval of the withdrawal of the charge in
Case 26-CD-113 and ordered the consolidation of Cases 26-CD-113 and
26-CD- 118 for purposes of hearing.
C. Contentions of the Parties
The Employer and Machinists take the position
that the Employer's assignment of the disputed work
is consistent with the collective-bargaining agree-
ment between the Employer and the International
Association of Machinists and Aerospace Workers,
AFL-CIO, as well as certain local agreements be-
tween the Employer and District Lodge No. 135. The
Employer further contends that its assignment is
consistent with its past practice and industry prac-
tice , and that the factors of relative skills and econo-
my of operations favor an award of the disputed
work to employees represented by Machinists. The
Employer additionally argues that any award herein
should not be limited to the work in dispute, but
rather should also encompass similar work to be per-
formed at the Memphis, Tennessee, jobsite in the
near future.
Millwrights contends primarily that the factor of
area practice favors an award of the work in dispute
to employees represented by it. It further argues that,
inasmuch as the local agreements between the Em-
ployer and Machinists have not been signed by the
Employer, the Employer, in effect, has no agreement
with Machinists so as to require it to assign the dis-
puted work to machinists. Finally, Millwrights con-
tends that the Board should make separate awards
with respect to the installation of the newspaper
printing presses and installation of the conveyor belt
system and related equipment, respectively.
D. 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 volun-
tary settlement of the dispute.
As stated above, the parties stipulated that Mill-
wrights presented claims for the disputed work to of-
ficials of both the Employer and J. A. Jones Con-
struction Company and established pickets in
support of those claims. The parties further stipulat-
ed that Millwrights conduct herein gives the Board
reasonable cause to believe that Millwrights has vio-
lated Section 8(b)(4)(D) of the Act. Based on the
4 Although Millwrights initially also claimed the work of unloading, rig-
ging, and setting into position the newspaper printing presses and conveyor
belt system which the Employer has assigned to employees represented by
Iron Workers, at the hearing Millwrights conceded that such work fell with-
in the j urisdiction of Iron Workers and effectively disclaimed any interest
therein.
MILLWRIGHTS ' LOCAL UNION NO. 1357 493
foregoing, and the record as a whole, we find that
Millwrights sought to force or require the assignment
of the disputed work to employees represented by it
rather than to employees represented by Machinists.
Accordingly, we find that reasonable cause exists to
believe that Millwrights violated Section 8(b)(4)(D)
of the Act.
No party contends, and the record discloses no ev-
idence showing , that an agreed-upon method for the
voluntary adjustment of the instant dispute exists to
which all parties are bound. Accordingly, we find
that the dispute is properly before the Board for de-
termination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.
1. Certification and collective-bargaining
agreements
Neither Millwrights nor Machinists has ever been
certified as collective-bargaining representative for a
unit of the Employer's employees. The Employer has
no collective-bargaining agreement with Millwrights.
The Employer, however, has a current collective-bar-
gaining agreement with the International Association
of Machinists and Aerospace Workers which specifi-
cally covers the work in dispute. That agreement also
contains a provision entitled "Working Rules,"
which reads as follows:
In all instances, the employer shall assume the
working rules with regard to hours of work,
wage rates , paid holidays, vacations, pensions,
insurance, and fringe benefits as provided for in
the working rules of the union and/or its affiliat-
ed district or local lodge, and whose territory he
is working.
Pursuant to this agreement Machinists , by letter dat-
ed February 5, 1975, provided the Employer with a
copy of the working rules adopted in its jurisdiction
and, subsequently, by letter dated May 15, 1975, sent
to the Employer a revised copy of its working rules.
Although the Employer and Machinists apparently
did not formally execute an agreement with respect
to these local working rules , it is clear that the Em-
ployer viewed its collective-bargaining agreement
with the International Union as requiring it to assign
the disputed work to employees represented by Ma-
chinists and to apply such working rules to them. We
therefore find that the Employer's agreement with
the International Union, when considered in light of
the Employer's interpretation of that contract in hir-
ing employees represented by Machinists, and partic-
ularly in view of the fact that that agreement specifi-
cally covers the disputed work, favors the Employer's
assignment.'
2. Employer's past practice, assignment, and
preference
It is undisputed that, since it commenced opera-
tions some 20 years ago, the Employer, with the ex-
ception of two projects, has consistently assigned the
work in dispute to machinists. The Employer's pre-
dominant past practice, therefore, favors the
Employer's assignment.
At the hearing the Employer, through the testimo-
ny of its president, expressed its preference that the
disputed work be awarded to employees represented
by -Machinists. While we do not afford controlling
weight to this factor, we find that it tends to favor an
award of the disputed work to employees represented
by Machinists.
3. Area and industry practice
Millwrights presented testimony that it is the gen-
eral practice for contractors and companies within
the Memphis , Tennessee , and Midsouth areas to uti-
lize millwrights to perform the installation and as-
sembly of heavy industrial equipment and conveyors,
including the installation of printing presses and re-
lated conveyor systems . None of these projects, how-
ever , appear to have involved the installation of the
specific types of newspaper printing presses and con-
veyor belt system involved herein . Furthermore, the
Employer presented undisputed testimony that it has
utilized machinists to perform work similar to that in
dispute here on projects in Chattanooga, Knoxville,
Kingsport , and Johnson City, Tennessee, and that,
for at least the past 14 years, Memphis Publishing
Company has exclusively utilized machinists to per-
form the work of installing newspaper printing press-
es and conveyor systems at its facility . We therefore
find that the evidence with respect to area practice is
inconclusive.
The Employer presented uncontradicted testimony
that it, as well as the other three large companies
which specialize in the installation of newspaper
printing presses and related conveyor systems on a
nationwide basis , has consistently utilized machinists
to perform the assembly, leveling, and precision work
5International Association of Machinists Local 1366 (Copolymer Rubber
and Chemical Corporation), 167 NLRB 916, 917-918 (1967).
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in such projects. We find, therefore, that the
factor of industry practice favors an award of the
disputed work to employees represented by Machin-
ists.
4. Relative skills and economy of operations
The Employer presented testimony that the print-
ing presses and lap-stream conveyor belt systems in-
volved herein are used almost exclusively by large
newspaper publishing companies and are signifi-
cantly more sophisticated than generally similar
types of equipment used in other industries . In this
regard , the Employer presented undisputed evidence
that the installation of such equipment involves, at
least in part , the utilization of specially adapted pre-
cision instruments . The Employer , through the testi-
mony of its president , expressed its position that,
based on its experience on other projects involving
work similar to the disputed work , it is persuaded
that machinists generally possess the requisite skills
to perform such work in a competent manner and,
specifically , that it has been satisfied with the work
performance of its machinists at the Memphis, Ten-
nessee , jobsite . The record also discloses that some,
but not all, of the machinists currently employed at
the jobsite have had prior experience in the use of the
specially adapted precision instruments.
Millwrights presented testimony that the printing
presses and conveyor system involved herein are not
significantly different than those which millwrights
have installed in various heavy industrial plants and
small newspaper publishing companies in the past.
However, Millwrights presents no specific evidence
that employees represented by it have in fact in-
stalled the particular type of equipment herein in-
volved. Millwrights further adduced evidence that
employees represented by it have had extensive ap-
prenticeship training and experience in the use of
precision tools which enable them to work at toler-
ances less than one-thousandth of an inch . Further-
more , at the hearing the Employer presented no evi-
dence that employees represented by Millwrights do
not possess the skills necessary to perform the disput-
ed work in a competent manner , but rather , through
the testimony of its president , merely took the posi-
tion that it was unfamiliar with the skills possessed
by these employees . We therefore find that the factor
of relative skills is not determinative.
The Employer contends that the factor of econo-
my of operations favors its assignment of the work in
dispute . In this regard, the Employer relies primarily
on the testimony of its president that an award of the
disputed work to employees represented by Mill-
wrights "would probably" require it to bring an addi-
tional supervisor from its Cleveland , Ohio, office to
the Memphis , Tennessee , project in order to provide
further training for the millwrights , thereby resulting
in delay in the completion of the project . However,
inasmuch as the Employer 's president conceded at
the hearing that he was unfamiliar with the skills pos-
sessed by the employees represented by Millwrights,
it is unclear as to what degree , if any , an award of the
disputed work to millwrights would necessitate addi-
tional training for these employees . We find , there-
fore , that the factor of economy of operations does
not aid us in making a determination of the dispute.
F. Scope of the Award
At the hearing Millwrights stated its position that
the Board should make separate awards of the work
involving the installation of the newspaper printing
presses and the installation of the conveyor belt sys-
tem. The Employer urges that a single award encom-
passing all aspects of the work in dispute is appropri-
ate. In this regard , the record clearly discloses that
the newspaper printing presses , the conveyor belt
system , and the related equipment are functionally
interrelated and are marked by a high degree of inte-
gration both electrically and mechanically . Further-
more , the factors which we have discussed above in
making our determination of dispute herein are fully
applicable to all aspects of the disputed work. Ac-
cordingly , we shall make a single award of the work
in dispute.
The Employer requests that the Board issue an
award assigning this general category of disputed
work to machinists on the grounds that it has been
engaged by Memphis Publishing Company to per-
form similar work at the jobsite in the near future,
including the removal of certain mailroom equip-
ment from the latter 's present facility and the instal-
lation and integration of that equipment with the
equipment currently being installed by the Employer
in the new addition , and that a similar dispute is like-
ly to recur over such work. We find merit in this
contention and, accordingly, our determination will
include any similar disputed work done or to be done
by the Employer at the Memphis , Tennessee, job-
site.'
Conclusion
Upon the record as a whole , and after full consid-
eration of all relevant factors involved , we conclude
6 Cf. Local 825A, 825B, 825C, 825D, International Union of Operating En-
gineers, AFL-CIO (Humble Oil & Refining Company), 195 NLRB 322, 324
(1972); Sheet Metal Workers' International Association , Local Union No 223.
AFL-CIO (Centex Winston Corporation), 193 NLRB 406, 408 (1971).
MILLWRIGHTS ' LOCAL UNION NO. 1357
that the Employer's employees represented by Ma-
chinists are entitled to perform the work in dispute.
We reach this conclusion upon the facts that such
assignment is consistent with the Employer's past
practice and is in accord with the interpretation giv-
en by the Employer to its current contractual agree-
ment with the International Association of Machin-
ists and Aerospace Workers, AFL-CIO; such
assignment is consistent with industry practice and
not clearly inconsistent with area practice; the em-
ployees represented by Machinists possess the requi-
site skills to perform the work; and the assignment is
consistent with the Employer's preference. Accord-
ingly, we shall determine the dispute before us by
awarding the work in dispute to the Employer's em-
ployees represented by Machinists, but not to that
Union or its members . The present determination
covers the existing jurisdictional dispute and any
similar disputed work done or to be done by the Em-
ployer at the Memphis, jobsite.
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 makes
the following Determination of Dispute:
495
1. Employees of George R. Hall, Inc., who are
currently represented by International Association of
Machinists and Aerospace Workers, AFL-CIO, Dis-
trict Lodge No. 135, are entitled to perform the as-
sembly, leveling, and precision work involved in the
installation of newspaper printing presses and news-
paper printing plant equipment, including a lap-
stream conveyor belt system and related items, and
all other similar work done or to be done by George
R. Hall, Inc., at the jobsite of the Memphis Pub-
lishing Company, Memphis, Tennessee.
2. Millwrights' Local Union No. 1357, United
Brotherhood of Carpenters and Joiners of America,
affiliated with AFL-CIO and Building Trades Coun-
cil, is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require George R.
Hall, Inc., to assign the above work to employees
represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Millwrights' Local
Union No. 1357, United Brotherhood of Carpenters
and Joiners of America, affiliated with AFL-CIO
and Building Trades Council, shall notify the Re-
gional Director for Region 26, in writing, whether or
not it will refrain from forcing or requiring the Em-
ployer, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the work in dispute to employees
represented by Millwrights rather than to employees
represented by Machinists.