Sheet Metal Wkrs. Local 85

National Labor Relations Board - Board Decisions

Aug 8, 1972

198 N.L.R.B. 771 (N.L.R.B. 1972)

SHEET METAL WKRS . LOCAL 85
Sheet Metal Workers Local Union No. 85 and
Kewaunee Scientific Equipment Corporation and
Local Union No. 225, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
Case 10-CD-241
August 8, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following a charge and amended charge filed by
Robert L. Thompson on behalf of Kewaunee
Scientific Equipment Corporation (hereafter Kewau-
nee or Employer) alleging that Sheet Metal Workers
Local Union No. 85 (hereafter Sheet Metal Workers)
violated Section 8(b)(4)(i) and (ii)(D) of the Act. A
hearing was held on April 17, 1972, before Hearing
Officer Robert C. Batson. All parties 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,
Kewaunee filed a brief in support of its position.
Pursuant to 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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
All parties stipulated that Kewaunee Scientific
Equipment Corporation, a Delaware Corporation
having places of business in Adrian, Michigan, and
Statesville, North Carolina, is a specialty contractor
engaged in the manufacture, sale, distribution, and
installation of scientific laboratory furniture and
equipment. It operates in all 50 States and has a
dollar volume of business of approximately $28
million per year. The parties have further stipulated,
and we find, that Kewaunee is engaged in commerce
within the meaning of the Act and that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
t Britt denies this event and asserts that some time after March 10, 1972,
the date of an AFL-CIO National Joint Board for the Settlement of
Jurisdictional Disputes award, he notified the Carpenters and Kewaunee of
II. THE LABOR ORGANIZATIONS INVOLVED
771
All parties stipulated, and we find, that Sheet
Metal Workers Local Union No. 85 and Local
Union No. 225, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO (hereafter Car-
penters), are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of Dispute
Beers Construction Company, general contractor
for the Anatomy and Physiology Building Project at
Emory University in Atlanta, Georgia, subcontracted
the manufacture and installation of laboratory
equipment to Kewaunee. Consistent with its nation-
wide and area practice, Kewaunee assigned the
installation of said equipment, including fume
exhaust hoods, to carpenters.
According to the testimony of Kewaunee's installa-
tion supervisor, W. C. Murray, he was approached in
the basement of the anatomy building on March 6,
1972, by the Sheet Metal Workers business agent,
Melvin R. Britt, accompanied by the project job
steward and a superintendent for Beers Construction
Company. Britt allegedly asked Murray whether he
was "going to set those hoods" to which Murray
responded affirmatively. Britt then warned that if he
did, "there would be a picket put on the job." 1
Murray further testified that when he began setting
the hoods with carpenters 1 month later on April 6,
1972, he was told by Britt to stop or else there would
be a picket. At approximately 11:30 a.m. on April 6,
a single picket appeared with a sign stating that
Kewaunee was "unfair" to the Sheet Metal Workers.
As soon as the picket appeared, all painters,
electricians, and plumbers left the job. The picket
remained for the duration of the working day but
failed to reappear. At the hearing , Britt, in referring
to the installation of the fume exhaust hoods,
admitted that the picket was designed "to get the
work."
B. The Work in Dispute
The disputed work involves the "handling and
installing" of fume exhaust hoods at the above-
mentioned jobsite. Testimony indicates that "han-
dling and installing" includes the unloading of the
hoods from trucks, moving the hoods into the
assigned building, uncrating them and then raising,
fitting, and securing them to a hood base which has
the award, but did not threaten to strike or caution that there would be
trouble.
198 NLRB No. 100
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already been attached to a floor cabinet . The cabinet,
hood base , and fume hood then form a single,
integrated unit . Sheet Metal Workers acknowledges
that installation of the cabinets and hood bases has
been properly assigned to carpenters.
C. The Contentions of the Parties
The Sheet Metal Workers asserts that the disputed
work should be assigned to its members on the basis
of area and nationwide practice . In support of its
contention , primary reliance is placed on some 200
National Joint Board awards which the parties
stipulated had been made to the Sheet Metal
Workers since 1964 . Said stipulation , however, also
indicated that in some instances the parties were not
bound by the awards and consequently the awards
did not reflect to what extent the Sheet Metal
Workers actually performed the work.
In addition, the Sheet Metal Workers relies on a
National Joint Board decision in the instant case
dated March 10 , 1972, wherein the disputed work
was assigned to its members . Reliance is placed on
this award even though the record discloses that
Kewaunee had never agreed to be bound by such
award.
Kewaunee and the Carpenters , on the other hand,
contend that all phases of fume exhaust hood
handling and installation should be performed by
carpenters for essentially the same reasons that were
advanced and found controlling by the Board in
Local Union No. 80, Sheet Metal Workers' Interna-
tional Association, AFL-CIO (Speaker & Associates,
Inc.), 190 NLRB No. 64; Local 299, Sheet Metal
Workers' International Association, AFL-CIO (Meta-
lab Equipment Co.), 173 NLRB 1329; and Local 408,
Sheet Metal Workers' International Association,
AFL-CIO (Metalab Equipment Co.), 149 NLRB 763.
See also Local Union No. 80, Sheet Metal Workers'
International Association, AFL-CIO (Norlab, Corp.),
191 NLRB No. 87. Briefly , it is contended that (1)
Kewaunee has a longstanding nationwide practice,
which is in conformity with area and industry
practice , of assigning the installation of the entire
unit to carpenters ; (2) fume exhaust hoods are
installed in the same manner as other related
laboratory furniture assigned to carpenters without
question , and consequently the assignment of the
entire fume exhaust hood installation to carpenters
would be more economical and efficient by avoiding
what would otherwise be a two-step operation; (3)
the hoods are tied into and attached to the other
furniture in the laboratory as integral units ; (4) since
the disputed work is in the nature of installation
rather than fabrication , the work requires the basic
skills of carpentry-minute leveling, the adjusting
and aligning of sashes and doors, refinishing dam-
aged or tarnished surfaces , and leaving the complet-
ed furniture in a highly finished condition ; (5) the
handtools necessary to perform the work, including
4-foot levels, screwdrivers, bolts, glue, putty knives,
and pry bar, are those of carpenters rather than sheet
metal workers; and (6) carpenters have extensive
experience in the installation of such equipment.
Kewaunee and the Carpenters further contend
that, although neither the Sheet Metal Workers nor
the Carpenters enjoy National Labor Relations
Board certification , Kewaunee executed a national
contract with the Carpenters, currently in effect,
requiring the Company to honor the jurisdictional
claims of the Union. Finally, as indicated above, it is
asserted that neither Kewaunee nor the Carpenters is
subject to any voluntary adjustment of this dispute
by the National Joint Board.
D. Applicability of the Statute
The charges allege violations of Section 8(b)(4)(i)
and (ii)(D) of the Act. The record shows that on
March 6, 1972, a claim was made for the disputed
work by the Sheet Metal Workers accompanied by a
threat to picket the jobsite unless the disputed work
was assigned to it. On April 6, 1972, the threat to
picket was reiterated and a picket was placed on the
jobsite for approximately 4 to 5 hours. The picket
was admittedly intended to "get the work." As a
result of the picketing, painters , electricians, and
plumbers withheld their services.
The record indicates that, although the Sheet Metal
Workers submitted the instant dispute to the Nation-
al Joint Board , Kewaunee has not agreed to be
bound by such awards.
Based on the entire record, including the admission
of the Sheet Metal Workers that it picketed in order
to acquire the disputed work, we conclude that there
is reasonable cause to believe that there has been a
violation of Section 8(b)(4)(D) of the Act and that
the dispute is properly before the Board for determi-
nation.
E. Merits of the Dispute
1. Certification and collective-bargaining
agreements
Neither the Sheet Metal Workers nor the Carpen-
ters has been certified by the National Labor
Relations Board with respect to any employee
involved in the instant proceeding. While the Sheet
Metal Workers has advanced no contractual claim to
the work in dispute, the Employer does have a
contract with the Carpenters International pursuant
to which it must recognize the jurisdictional claims of
SHEET METAL WKRS. LOCAL 85
that union in any locality in which the Employer
performs work.
2. Company and industry practice
The record indicates that Kewaunee's nationwide
policy is to assign the disputed work to carpenters
regardless of National Joint Board awards to the
contrary. Kewaunee has never assigned the work in
question in the first instance to sheetmetal workers
although there have been a few occasions in which
Kewaunee has involuntarily assigned the work to
composite crews following threats or actual picketing
by the Sheet Metal Workers.
In addition, there is testimony that Kewaunee's
five major competitors in the Alabama-Georgia-
Tennessee area also have a uniform policy of
assigning the disputed work to carpenters.
3. Relative skills
The skills required to perform the disputed work
appear to be traditional skills of carpenters, includ-
ing leveling, screwing, bolting together, and gluing
the fume exhaust hoods to the hood base. In
addition, unlike the sheetmetal workers, carpenters
possess all the tools, including 4-foot levels, required
for the proper installation of the fume exhaust hoods.
4. Efficiency and economy of operation
The factors of efficiency and economy favor
assignment of the disputed work to carpenters. First,
the fume exhaust hoods are installed in the same
manner as the rest of the laboratory furniture,
including the cabinets and hood base, already
installed by carpenters. By assigning the entire fume
exhaust hood installation to carpenters, Kewaunee
avoids the costly two-step operation which would
accompany an assignment to sheetmetal workers.
Second, by assigning the work to carpenters,
Kewaunee benefits by the constant presence of
carpenters on the jobsite. Since carpenters are on the
site at all times, an assignment to them avoids the
necessity of Kewaunee hiring and transporting a
crew of sheetmetal workers each and every time a
truckload of hoods is delivered or each time
construction has reached the stage where another
hood is to be set. This consideration becomes
particularly important in view of testimony that
truck deliveries are made on a somewhat irregular
schedule and that, pursuant to instructions from the
general contractor, fume exhaust hoods are installed
each time a particular room is ready to accomodate
2 Local 408, Sheet Metal Workers' International Association, AFL-CIO
(Metalab Equipment Co.), supra; Local 299, Sheet Metal Workers' Interna-
tional Association, AFL-CIO (Metalab Equipment Co.), supra; Local Union
773
them rather than all at a single time. Moreover, the
sheetmetal workers would have to be paid for a
minimum of 4 hours even in situations where they
installed only one fume exhaust hood-a 1-hour
project.
Finally, the experience required is obviously
possessed by carpenters since carpenters are request-
ed by Kewaunee each time such installation work is
necessary.
5. Action of the National Joint Board
Since the Employer has not agreed to be bound by
National Joint Board awards, the Board's award of
the work involved in the proceeding is not control-
ling.
CONCLUSIONS
Based on the entire record, and after full considera-
tion of all relevant factors, we shall not disturb the
Employer's assignment of the disputed work to
carpenters. The Sheet Metal Workers has no contrac-
tual claim to the work; the assignment is consistent
with the Employer's and industry practice; and the
assignment best utilizes the relative skills involved
and provides for maximum efficiency and economy
of operations.
Accordingly, we shall determine the existing
jurisdictional dispute by deciding that carpenters,
represented by the Carpenters, rather than sheetmet-
al workers, represented by the Sheet Metal Workers,
are entitled to the work of handling and installing
fume exhaust hoods. In making this determination,
we are awarding the work in question to employees
represented by the Carpenters, but not to the
Carpenters or its members.
SCOPE OF THE DETERMINATION
The Employer, in its brief, requests that the Board
fix the scope of its award nationwide. Citing prior
Board decisions involving installation of fume
exhaust hoods,2 plus admissions from local union
officials that their demands for the work in the
instant proceeding were made pursuant to the
nationwide claims of their respective International
organizations, the Employer suggests that "[o]nly the
broadest possible award is commensurate with the
dispute facing Kewaunee."
A nationwide award in this proceeding would
necessarily be binding on the Sheet Metal Workers'
International, an organization which was not official-
ly joined as a party. Since it is the Board's policy not
No. 80, Sheet Metal Workers' International Association, AFL-CIO (Speaker
& Associates, Inc.), supra; Local Union No. 80, Sheet Metal Workers'
International Association, AFL-CIO (Norlab Corp.), supra.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to issue a 10(k) award against an organization not
officially joined as a party ,3 our award will apply
only to the two local unions involved herein.
However , in circumstances such as the present
where there is an indication that the dispute is likely
to recur , it has been the Board 's policy to issue an
award broad enough to encompass the geographical
area in which an employer does business and the
jurisdictions of the competing unions coincide.4
Therefore , our determination will cover assignment
of the disputed work in the area where Kewaunee
operates and the geographical jurisdictions of Sheet
Metal Workers Local Union No. 85, and Local
Union No. 225, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, coincide.
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
hereby makes the following Determination of Dis-
pute.
1. Carpenters who are represented by Local
Union No. 225, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, are entitled to
perform the work of handling and installing fume
exhaust hoods on work performed by Kewaunee
Scientific Equipment Corporation, wherever the
jurisdictions of Local Union No. 225, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and Sheet Metal Workers' Local Union
No. 85 coincide.
2. Sheet Metal Workers Local Union No. 85 is
not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the
Employer to assign the above work to sheetmetal
workers who are represented by the Sheet Metal
Workers.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers
Local Union No. 85 shall notify the Regional
Director for Region 10, in writing, whether it will or
will not refrain from forcing or requiring the
Employer, by means proscribed by Section
8(b)(4)(D), to award the work in dispute to its
members rather than to employees represented by
the Carpenters.
3 Laborers ' International Union of North America, Local Union #576, 4 Local 299, Sheet Metal Workers' International Association , AFL-CIO
AFL-CIO (Franke Foundation Co), 197 NLRB No 64 (Metalab Equipment Co ), supra, 1332