Sheet Metal Workers, Etc.

National Labor Relations Board - Board Decisions

Mar 31, 1955

111 N.L.R.B. 1307 (N.L.R.B. 1955)

SHEET METAL WORKERS, ETC. 1307
2. By discriminating in regard to the hire and tenure of employment of George
R. Bencheck , thereby encouraging membership in a labor organization, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
3. By the above discrimination and other conduct found above, thereby interfer-
ing with, restraining , and coercing employees or applicants for employment in the
exercise of rights guaranteed by Section 7 of the Act, the Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. By attempting to cause and causing the Company, an employer to discriminate
against George R. Bencheck in violation of Section 8 (a) (3) of the Act, the Union
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (b) (2) of the Act.
5. By causing the Company to discriminate as aforesaid, and by other conduct
found above, thereby restraining and coercing employees or applicants for employ-
ment in the exercise of rights guaranteed by Section 7 of the Act, the Union has
engaged in and is engaging in unfair labor practices within the meeaning of Section
8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 49 and
FARNSWORTH & CHAMBERS CO., INC. Case No. 33-CD-5. March
31,1955
Decision and Determination of Dispute
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of Section 8 (b) (4) (D) of
the Act, the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have arisen.
On September 22, 1954, Farnsworth & Chambers Co., Inc., herein
called the Employer, filed with the Regional Director for the Sixteenth
Region a charge alleging that Sheet Metal Workers International
Association, Local 49, herein called the Sheet Metal Workers, has en-
gaged in and is engaging in certain activities proscribed by Section
8 (b) (4) (D) of the Act. It was alleged, in substance, that the Sheet
Metal Workers had induced and encouraged employees of the Em-
ployer to engage in a concerted refusal to work in the course of their
employment with an object of forcing or requiring the Employer to
assign particular work to members of the Sheet Metal Workers rather
than to employees who are members of International Association of
Bridge, Structural & Ornamental Iron Workers, Local 495, herein
called the Iron Workers.
Pursuant to Section 102.71 and 102.72 of the Board's Rules and
Regulations, the Regional Director investigated the charge and pro-
vided for an appropriate hearing upon due notice to all the parties.
111 NLRB No. 203.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter a hearing was held before Harold L. Hudson , hearing
officer, on October 19, 1954. The Iron Workers appeared by repre-
sentative at the hearing but did not become an intervenor . 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 issue . The rulings of the hearing officer made at the
hearing are free from prejudicial error and are hereby affirmed. The
Employer and the Respondent Sheet Metal Workers have filed briefs.
On November 15 the Sheet Metal Workers filed a motion with the
Board to withhold consideration and determination of the issues on
the ground that the official report of proceedings is not a full, com-
plete, or factual record. The Employer responded by urging that
the official reporter be granted a reasonable time in which to correct
the record , which response the Sheet Metal Workers moved to strike.
After due consideration the Board instructed the official reporter to
issue a supplemental corrected transcript , and denied the Sheet Metal
Worker's motion , without prejudice to its renewal after receipt of
the supplemental transcript . The supplemental transcript was re-
ceived on January 7 and on January 10 the Sheet Metal Workers
renewed its original motion, attaching a lengthy specification , by page
and line, where it considered mistranscripti on and omissions to have
occurred , but without explanation in any instance as to what it claimed
the tenor of the original testimony to have been . The Board having
duly compared the two transcripts and considered the line-by-line
objections of the Sheet Metal Workers , hereby denies the latter's
motion to withhold consideration and determination of the issues inas-
much as the record, despite some obvious garbling of testimony, is
intelligible and the alleged omissions have not been shown even
generally.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Farnsworth & Chambers Co ., Inc., is engaged in the general con-
struction business with home office at Houston , Texas. It is the con-
tractor for the construction of a laboratory administration building
for the Atomic Energy Commission at Los Alamos , New Mexico, at a
price of $4 ,589,000. It is estimated that at least 65 percent of the
$2,500,000 worth of materials used in construction are shipped to New
Mexico from outside the State. The parties stipulated, and the Board
finds that the Employer is engaged in commerce within the meaning
of the Act . The Board further finds that it will effectuate the policies
of the Act to assert jurisdiction over the Employer 's operations here
SHEET METAL WORKERS, ETC. 1309
involved as the Company's operations meet both the direct inflow
standard 1 and the national defense standard.'
U. THE LABOR ORGANIZATIONS INVOLVED
The Sheet Metal Workers and the Iron Workers are labor organiza-
tions within the meaning of the Act.
III. THE DISPUTE
A. The facts
The building under construction has 1,960 windows with aluminum
frames, set in vertical "ribbons" from the ground to the fourth floor.
Delivery on these windows, together with the necessary clips, sills,
heads, and mullions for installation, began about August 20. The
Employer employed common laborers to move the windows into the
building, and additional iron workers to install them. This work was
not subcontracted. Ventilating and air-conditioning, plumbing and
heating, electrical work, roofing, and window glazing had already been
subcontracted to various subcontractors and partially completed at the
time the dispute arose. The F. B. Gardner Company has the ventilat-
ing and air-conditioning contract and it employs members of Local 49
of the Sheet Metal Workers. At the time of the dispute the Employer
was itself employing truckdrivers, common laborers, carpenters, brick
masons, ironworkers, operating engineers, and oilers to do that part
of the work which was not subcontracted. The record indicates that
it had previously employed sheet metal workers directly on another
Los Alamos project.
Sometime between September 8 and 13 Brooks, business agent for
the Sheet Metal Workers, spoke with May, the Employer's job super-
intendent, concerning assignment of the window installation work to
the Sheet Metal Workers. In the course of the conversation May
explained that he was having ironworkers do the installation and
that it was his job to get the work done as cheaply as possible. Men-
tion was made of the higher rate of pay received by sheet metal
workers. In an effort to avoid trouble May later called the Iron
Workers' Local to ask their reaction should he cease having their men
do the work, and was told that they would "strike" the job if that
were done. The record shows that the Employer has no contract with
any union and no union is certified to represent employees for work
on this project.
On September 20 the Sheet Metal Workers wrote to the Albuquerque
Building Trades Council requesting the Trade Council's cooperation
and stating that it was about to picket the project for violation of a
1 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
2 Maytag Aircraft Corp., 110 NLRB 594.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Green Book" decision to which, it alleged, the Employer, as a mem-
ber of Associated General Contractors, was a party. On that day the
sheet metal workers left the job. On the 21st sheet metal workers
began picketing the job with signs which read: "Picket, Sheet Metal
Workers International Association, Local 49." Other crafts left the
job then, but all returned within 8 or 9 days because the Trades
Council termed the dispute jurisdictional and instructed its members
not to honor the picket line. The Sheet Metal Workers admits it
never offered to settle the dispute on the basis of higher pay for the
ironworkers.
Picketing stopped October 6 and the sheet metal workers returned to
the job to work for their subcontractor Gardner, but the Union has not
advised the Employer that it has permanently ceased picketing or is
satisfied with the Employer's disposition of window installation work.
Lewis, the secretary of the Employer, testified that he was contacted
in a joint telephone call by representatives of both Unions after the
picket line was removed, that he understood from Brooks of the Sheet
Metal Workers that any agreement not to resume picketing would be
based upon the assignment to the Sheet Metal Workers of future work
on the project claimed by them, and that procedures of the "National
Joint Board" were discussed. This witness admitted that the Em-
ployer was a member of the Associated General Contractors in the New
Mexico area, and that its main office at Houston had wired the Na-
tional Joint Board advising it of the picketing and seeking assistance.
He denied that he or Brooks had agreed to be bound by any decision
that might be rendered by that board.
The record indicates that Job Superintendent May talked with Coats,
the manager of the New Mexico branch of the Associated General
Contractors, who also informed the Joint Board of the dispute and
kept it informed of developments. Coats testified that this was not
done at the request of the Employer and that no individual member
of Associated General Contractors is considered bound by an agree-
ment to submit jurisdictional disputes to the National Joint Board
unless that individual member has signed an agreement to that effect,
or so stipulated, which the Employer has not done to his knowledge.
The so-called Green Book apparently contains a 1926 determination
concerning the installation of metal windows by ironworkers or by
sheet metal workers, depending upon the gauge metal involved. The
portion urged by the Sheet Metal Workers was read into the record.
The record indicates that the book is a publication of awards or rules
of the Associated General Contractors and certain AFL Building
Trade Unions, and that it is implemented by the National Joint Board
for Settlement of Jurisdictional Disputes, the structure and procedures
of which this Board has taken judicial notice. See United Brother-
hood of Carpenters and Joiners of America, Local 943, A. F. of L.
SHEET METAL WORKERS, ETC. 1311
(Manhattan Construction Company, Inc.), 96 NLRB 1045, footnote 1.
Four telegrams sent between September 22 and October 7 by the
said Joint Board to the International President of the Sheet Metal
Workers ordering removal of the picket line were read into the rec-
ord; the last two stated that the Joint Board had so voted.
B. Contentions of the parties
The Employer contends that the Sheet Metal Workers picketed for
the sole purpose of forcing it to assign the window installation work
to members of the Sheet Metal Workers rather than to employees of
the Employer who were members of the Iron Workers, thereby violat-
ing Section 8 (b) (4) (D) of the Act.
The Sheet Metal Workers, in its written response to the notice of
hearing, denies the contention of the Employer. Also it contends that
the Employer, as a member of the Associated General Contractors,
agreed to settle jurisdictional disputes through the National Joint
Board of Jurisdictional Awards, therefore this Board has no jurisdic-
tion under Section 10 (k) of the Act. In its brief it also contends that
the real purpose of the picketing was to publicize a wage differential.
C. Applicability of the statute
Although the Sheet Metal Workers made some argument at the
hearing that their purpose in striking and picketing was to object to
the low wage rate being paid for the window installation work, there
is reasonable cause to believe on this record that the work stoppage
was intended to force or require Employer Farnsworth to assign the
window installation work to members of the Sheet Metal Workers
instead of to Farnsworth's employees who were members of the Iron
Workers, as proscribed by Section 8 (b) (4) (D) of the Act. In view
of our finding in that regard, as well as the fact that the record does
not contain "satisfactory evidence that they [the parties] have ad-
justed, or agreed upon methods for the voluntary adjustment of the
dispute" within the meaning of Section 10 (k), we find that the dispute
in question is properly before us.
D. Merits of the dispute
The Sheet Metal Workers does not claim to be the certified bargain-
ing representative for employees performing window installation
work for this Employer, nor does it claim any contract directly with
this'Employer for this work. It does, however, claim that this Em-
ployer, as a member of Associated General Contractors, is bound by
the 1926 window installation award it urges, and also, as a member of
Associated General Contractors, is bound to submit any dispute over
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an award to the said National Joint Board of Jurisdictional Awards,
which is made up of industry and union members . In addition its
testimony indicates that it construed the Employer's reference of this
particular dispute to that Board as a current agreement to settle the
dispute voluntarily.
We think that the evidence here presented falls short of establish-
ing an oral agreement of the parties to be bound by the decision of
the National Joint Board in this particular controversy simply be-
cause the Employer sought that Board's assistance in ending the
strike. If the Employer's statement of intention to submit, or its
actual submission of, the dispute to the Joint Board is to be taken as
an offer, then testimony is lacking that the Sheet Metal Workers ac-
cepted that offer by agreeing to be bound by the result. Concerning
the possibility of any earlier general agreement, it appears from the
record that neither the Employer nor the Sheet Metal Workers is
signatory to the existing area contract between the New Mexico Build-
ing Branch, Associated General Contractors, and the New Mexico
Building & Construction Trades, which agreement obligates parties to
it to use the "Plan for National Joint Board Settlement of Jurisdic-
tional Disputes," and the record contains no evidence of such an agree-
ment on a broader geographic scale. The Sheet Metal Workers ad-
mitted that it had in its possession no contract whereby the Employer
agreed to submit to Joint Board proceedings. Hence there appears
to be no general agreement entered into by both of the parties covering
settlement of jurisdictional disputes. In the absence of such an agree-
ment, the applicability to this Employer of the 1926 window installa-
tion award cannot seriously be contended in this proceeding.3
It is well established that an employer may make work assignments
free of strike pressure by a labor organization "unless such employer
is failing to conform to an order or certification of the Board deter-
mining the bargaining representative for employees performing such
-work," or the claimant union has an immediate or derivative right
'tinder an existing contract upon which to predicate a lawful claim to
the work in dispute 4
We find, accordingly, that the Sheet Metal Workers was not and is
not lawfully entitled to force or require Employer Farnsworth to as-
sign the work of installing aluminum windows in the Los Alamos
laboratory administration building to members of the Sheet Metal
Workers rather than to its own employees who are members of the
3 See International Hod Carriers , Building, and Common Laborer's Union of America,
Local No. 231, AFL, et al. ( Mtiddle States Telephone Company of IUneois ), 91 NLRB 598.
604, text at footnote 14.
`See International Longshoremen's Association, Local 1294 ( Independent ) ( Cargill,
Inc.), 108 NLRB 313, par. with footnote 5, and cases there cited.
HILDEBRAND WAREHOUSE COMPANY 1313
Iron Workers. However, we are not, by this action, to be regarded as
"assigning" the work in question to the Iron Workers.'
Determination of Dispute
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following determination of
dispute, pursuant to Section 10 (k) of the Act:
1. Sheet Metal Workers International Association, Local 49, is not
and has not been lawfully entitled to force or require Farnsworth &
Chambers Co., Inc., to assign the work of installing aluminum win-
dows in the Los Alamos, New Mexico, Laboratory Administration
Building of the Atomic Energy Commission, to members of the Sheet
Metal Workers rather than to employees assigned by Farnsworth to
perform such work.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, the Respondent (Sheet Metal Workers) shall
notify the Regional Director for the Sixteenth Region in writing as
to what steps the Respondent has taken to comply with the terms of
this Decision and Determination of Dispute.
5 See Local Union No. 553, affi liated with the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,
A. F. L (Alton Water Company), 106 NLRB 186.
IRA P . HILDEBRAND , D/B/A HILDEBRAND WAREHOUSE COMPANY and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 745,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, AFL
DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 745,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, AFL and IRA P. HILDEBRAND,
D/B/A HILDEBRAND WAREHOUSE COAIPANY . Cases Nos. 16-CA-688
and 16-CC-921. March 31,1955
Decision and Order
On July 6, 1954, Trial Examiner Henry S. Salim issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent Employer and the Respondent Union had engaged in and
were engaging in certain unfair labor practices and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, both Respondents filed exceptions to the Intermediate
Report and the Respondent Company filed a brief in support of its
exceptions.
111 NLRB No. 193.