Sheet Metal Workers Local 16 (Brod & McClung)

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 116 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association,
Local No. 16 and Brod & McClung-Pace Co.
and Grand Metal Products Corp. Cases 36-CB-
1045 and 36-CB-1046
30 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 23 December 1983 Administrative Law
Judge Russell L. Stevens issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Parties filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sheet Metal
Workers International Association, Local No. 16,
Portland, Oregon, its officers, agents, and repre-
sentatives, shall take the action set forth in the
Order.
1 In response to exceptions, we note two factual errors in the judge's
decision which do not affect the ultimate disposition of the case. First,
the record shows that in 1952 Local 544 was created to represent em-
ployees primarily in the industrial and production industry, and that
Local 16 represented employees primarily in the construction industry.
Second, Brod's July 1982 proposal to Local 16 provided that Brod's
unionized employees would receive hourly compensation equaling hourly
wages in the building trades only during time spent on projects where
Sheet Building Trades contractors were still providing installation labor,
and that various pension and benefit fund contributions would not be
used in determining compensation.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Portland, Oregon, on October 12,
1983.1 The complaint in Case 36-CB-1045 is based on a
charge filed March 21 by Brod & McClung-Pace Co.
(Brod). The complaint in Case 36-CB-1046 is based on a
charge filed March 21 by Grand Metal Products Corp.
(Grand Metal). By order dated April 26 the Regional Di-
rector for Region 19, National Labor Relations Board
(NLRB), consolidated the two cases for trial and issued
I All dates hereinafter are within 1983 unless otherwise stated.
the complaint, which alleges that Sheet Metal Workers
International Association, Local No. 16 (Respondent or
Union), violated Section 8(b)(3) and (I)(A) of the Na-
tional Labor Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of Respondent and the Charging Parties. The
General Counsel made a closing oral argument at trial,
but did not file a written brief.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Brod & McClung-Pace Co. is an Oregon corporation
engaged in the manufacture of commercial and industrial
heating, ventilation, and air-conditioning equipment in
Portland, Oregon. During the past year it did a gross
volume of business in excess of $50,000 and purchased
goods and services from outside the State of Oregon
valued in excess of $50,000, which were transported to
its Portland location directly from points outside the
State of Oregon.
Grand Metal Products Corp. is an Oregon corporation
engaged in the manufacture of hollow metal doors, metal
door frames, and other metal products in Portland,
Oregon. During the past year Grand Metal Products
Corp. did a gross volume of business in excess of
$500,000, and purchased goods and services from outside
the State of Oregon in an amount in excess of $50,000,
which were transported to its Portland location directly
from points outside the State of Oregon.
I find that Brod & McClung-Pace Co. and Grand
Metal Products Corp. are employers within the meaning
of Section 2(2) of the Act, and are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Sheet Metal Workers International Association, Local
No. 16 is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background2
Respondent is an old union, having been chartered by
its International Union in 1888 to represent employees in
construction and production industries. In 1952 Local
544 "carved out" of Respondent, and chartered by the
International Union primarily to represent employees in
the construction industry. Respondent remained after the
separation of construction employees from its jurisdic-
tion, primarily as a union to represent employees in the
production industry. On May 1, 1982, Local 544 was
merged back into Respondent and, on merger, Respond-
ent succeeded to all bargaining agreements to which
I This background summary is based on stipulations of counsel, and on
credited testimony and evidence not in dispute.
270 NLRB No. 17
116
SHEET METAL WORKERS LOCAL 16 (BROD & MCCLUNG)
Local 544 was a party. Thereafter, all employees of
Local 544 became members of Respondent.
Brod manufactures heating, ventilating, and air-condi-
tioning equipment which it delivers to, and has installed
at, various projects principally in the Portland, Oregon
area but throughout the United States Brod's manufac-
turing facility is located in Portland, where it employs
approximately 190 union employees and approximately
55 nonunion office employees. Brod's equipment, which
is installed by plumbing and heating and cooling contrac-
tors and sheet metal employees, is guaranteed for I year
from the first beneficial use by buyers of the equipment.
Because the first beneficial use often occurs only after a
lengthy construction period of large buildings or facili-
ties, the warranty time may extend over a period of 2 or
3 years. Some installers of Brod's equipment may be non-
union contractors, but sheet metal work done on that
equipment within Respondent's jurisdiction is performed
by members of Respondent.
Grand Metal manufactures metal doors, door frames,
and hospital surgical cabinets and partitions, which it de-
livers to, and has installed at, various projects principally
in the Portland area. Grand Metal guarantees its prod-
ucts, usually for 1 year. However, that period of time
may be longer if so required by architectural specifica-
tions. Prior to March 1979 Grand Metal installed the
products it sold, but on that date it sold its installation
business to one of its employees, Buster Hoagland, who
established his own business called H & H Metal Prod-
ucts. Thereafter, and to the present time, Grand Metal
has done no installing of the products it manufactures.
Brod has been in business since the 1940s, and has had
collective-bargaining agreements with Local 544 since it
was organized in 1952. Brod's union employees are paid
in accordance with its agreement with Local 544, the
most recent agreements having been signed effective
April 1, 1982, just prior to Local 544's merger with Re-
spondent on May 1 of that year. Prior to May 1, 1982,
Brod had no agreement with Respondent, but since that
date its union employees have been represented by Re-
spondent. Brod's most recent agreement with Local 544,
as well as its predecessor agreements, includes a schedule
of employee classifications and pay. No separate classifi-
cation or pay rate is given for work performed pursuant
to Brod's equipment warranty, which is the type of work
principally involved in this controversy. Pay rates for
employees engaged in shopwork for Brod generally are
less than rates for outside sheet metal construction work
performed at jobsites.
Grand Metal had collective-bargaining agreements
with Local 544 from 1952 until that local was merged
with Respondent May 1, 1982. The last agreements is ef-
fective from April 15, 1982, through March 31, 1985.
That agreement includes an employee classification and
pay schedule, but no separate category is provided for
employees engaged in warranty work.
Over the past years, since the late 1940s, Brod com-
monly has received customer complaints within its prod-
uct warranty period, concerning product deficiencies. On
3 This agreement is J. Exh. 2.
4 J. Exh. 1.
receiving such complaints, Brod dispatches shop employ-
ees to the jobsite to inspect the equipment and make nec-
essary adjustments or repairs. For the past couple of
years Brod's chief warranty serviceman has been Leroy
Manley, whose predecessor in that capacity was Don
Pottratz. Both employees were members of Local 544
prior to the 1982 merger, as was their helper, John
Wakefield. Manley works in the shop, and goes into the
field only on special detail. He is paid pursuant to Brod's
bargaining agreement, and does no outside sheet metal
work. When he works at outside jobsites, such as when
he does onsite warranty work, his pay under the bargain-
ing agreement is less than that of sheet metal workers on
the job pursuant to union dispatch.
In 1980, when Brod had a collective-bargaining agree-
ment with Local 544, Pottratz was accosted in the field
by a representative of Local 16 while making repairs in
the nature of warranty work, and was told that he was
not permitted by Respondent to do that work. Pottratz
later was subjected to a union fine, and Brod filed an
unfair labor practice charge with the Board. Ultimately,
the fine was rescinded, and the charge was dropped.
That incident resulted in an exchange of letters between
Brod and Respondent, wherein Respondent contended
that Brod's employees had been doing field construction
work at substandard wages. On October 9, 1980, Brod
wrote a long letter to Local 544, explained its warranty
policy, and listed work and parts involved in warranty
work. On May 13, 1981, and again on August 7, 1981,
Local 544 wrote to Brod. The latter correspondence
stated:
Dear Mr. Brod:
It has been brought to the attention of this local
union that there is a question regarding the scope of
work performed by your company as outlines in
your letter of October 9, 1980 pertaining to field in-
stallation work (copy enclosed).
Please be advised that this Local Unuon [sic]
wants to make our position clear, that the Local
No. 544 contract signed with your company does
not cover the jurisdiction of any field installation,
and/or service work being performed by the em-
ployees covered under our agreement with your
company.
Field installation, and/or service work mentioned
above comes under the jurisdiction of our sister
construction local unions in the construction indus-
try.
Warranty work should not be construed as field
installation or service work.
It is our opinion that a warranty is a written
statement, or guarantee, made by the manufacturer
of a product assuring the purchaser that repairs or
replacement of defective parts will be made, with-
out charge, for a specified period of time.
If you desire, a representative of this local union
will contact you in the very near future regarding
clarification of this matter.
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the above events, Brod continued to do war-
ranty work in the field, as it had in the past.
Representatives of Local 544 and Brod informally dis-
cussed the problem on several occasions, but no agree-
ment was reached. The matter was not discussed during
negotiations for the 1982 agreement, although Brod pro-
posed to add "Factory Warranty Technician" to the
journeyman classifications. No action was taken on the
proposal.
On July 23, 1982, after the merger of Local 544 and
Respondent, Brod wrote to Local 16 and submitted a
proposal which, inter alia, provided that Brod's employ-
ees, when engaged in warranty work, would receive pay
and benefits equal to those of the sheet metal building
trades in the area where the work was performed.5 On
August 17, 1982, Respondent replied to Brod, rejected
the proposal, and offered a counterproposal which, inter
alia, would require that Brod use union-dispatched build-
ing trades employees for warranty work, rather than
Brod using its own employees. By letter dated August
31, 1982, Brod rejected Respondent's counterproposal.
By letter dated September 14, 1982, Respondent advised
Brod's, inter alia, "we will be notifying the various locals
that your firm does not have a field agreement, and your
employees are not to be working in the field." On Sep-
tember 30, 1982, Brod replied and stated, inter alia:
We should make it perfectly clear that, in our judg-
ment, it is in the best interests of Brod & McClung
and the members of your local employed in our
shop that we do exactly what we have been doing
in the past. This includes certain limited work in the
field which is well defined by years and years of
past practice under our agreement with you. Our
agreement has always governed the terms, pay and
other conditions under which that work has been
performed. We will continue to honor our contract
and expect you to do likewise. Continued attempts
on your part to unilaterally force changes in those
conditions are improper, if not illegal. To the extent
your actions in any way breach our agreement or
otherwise interfere with or damage our business, we
will, of course, have no alternative but to hold you
and the union responsible.
By letter dated September 14, 1982, Local 16 advised
Manley:
Dear Sir and Brother:
The agreement under which you are employed
does not cover job site labor, furthermore the dele-
gates at the convention voted to include the follow-
ing language in the constitution: "employees of em-
ployers engaged in the production or manufacturing
field in this industry who are not permitted to work
or be sent outside of shops or plants in which they
are employed to perform work except to inspect
William Brod, treasurer and a stockholder of Brod, credibly testified
that this type of arrangement was made on one of Brod's jobs in Phoenix,
Arizona, in 1982. R. Exh. 2 is a copy of the arrangement made with
Local 359.
warranty failure and to supervise the correction of
faulty products."
Should you have any questions, please give me a
call.
On October 7, 1982, Respondent's shop steward posted
a notice on Brod's bulletin board which stated, inter alia:
Anyone who works in the field but isn't covered by
a field agreement could be charged and fined. If
you are asked to work out of the shop it is recom-
mended that you tell the employer you don't want
to violate the Rules of the union, and to call the
Union to see if it is O.K.
In October 1982 Manley and Wakefield were sent by
Brod to do some work on equipment Brod had sold for
use at the Rossman landfill site in Oregon City. While
they were at work John Smith, who represented Re-
spondent, approached them, said they were doing unau-
thorized work, threatened them with fines and expulsion
from the Union, and handed them a copy of a recently
enacted amendment to the International's constitution
which covered the situation. Smith said the two employ-
ees could supervise the work if it were done by union-
dispatched employees, but that they could not work with
tools on the job.
On October 28, 1982, Brod posted the following notice
on its bulletin board, addressed to hourly employees:
In the recent past we have had a dispute with
Union Local 16 Buildings and Trades Division con-
cerning our past practices of warranty repair and
service work on heating, ventilating and air-condi-
tioning equipment of our manufacture and other
allied manufacturers. Under all the contracts and
agreements since this plant was unionized we have
provided warranty/service work for our customers.
This practice will continue!! It is mandatory for the
long-range health of our business and the company
to maintain a cost-effective warranty/service pro-
gram.
In answer to the Union's warning that any em-
ployee working in the field may be charged and
fined, we will file an unfair labor practice case
through the NLRB. The Union cannot unilaterally
change the contract and the rules of our past prac-
tices without first negotiating those changes.
Remember, we all work for Brod & McClung-
Pace Co., not the Union, and the Company pays all
the wages, salaries and benefits.
February 25, 1983, Manley was replacing a bearing on
equipment Brod sold to the Shriners' Hospital in Port-
land, when he was approached by Smith and Leo
Lyman, another representative of Respondent. Lyman
told Manley that he could inspect the equipment, but
that he could not work on it, since that was building
trades work. Lyman referred to the International's con-
stitution and stated that, if Manley worked on the equip-
ment, he would have to file union charges against
Manley. In order that the job, which was in the nature
118
SHEET METAL WORKERS LOCAL 16 (BROD & MCCLUNG)
of an emergency, could be completed, Manley super-
vised a steamfitter who did the work.
Grand Metal has done warranty work since 1952, and
for the past 5 years that work principally has been done
by employee Fred Elgin, a member of Local 544 prior to
the 1982 union merger. In 1980, Elgin was confronted on
a warranty job by a representative of Respondent, who
said Elgin was not supposed to be working on the job.6
Subsequently, union charges were filed against Elgin be-
cause of the incident, and he was fined by Respondent.
Grand metal filed a charge with NLRB because of the
fine. The fine later was rescinded. Elgin's money was re-
turned to him, and Grand Metal withdrew the NLRB
charge. In February 1983 Lyman and Charles Strayer,
another representative of Respondent, confronted Elgin
on a warranty job at Northwest Bell, and stated that
Elgin was not supposed to be doing that work. They
stated that, if Elgin continued to work on that job, he
would receive union charges and be fined. Elgin left the
job unfinished. The charges in this case resulted from
this incident.7
B. Discussion
There is no dispute concerning the fact that, historical-
ly, Brod and Grand Metal have performed warranty
work without challenge by Respondent. There is no evi-
dence that, prior to 1980, the subject was of concern to
the parties, or that the definition of warranty work was
in doubt. Such work was not defined in any contract, yet
Brod and Grand Metal consistently performed such
work year after year, clearly with Respondent's knowl-
edge. Brod proposed in 1982 that the new contract in-
clude a classification for warranty work, which proposal
was rejected, but that proposal was precipitated by the
recent objections of Respondent. Clearly, past practice
was that Brod and Grand Metal dispatched shop em-
ployees to do warranty work in the field, whatever may
have been set out as work classifications of the contracts.
Brod's proposal did not alter the fact that the parties for
many years had agreed to contracts that embodied their
past practice.
It is clear that the work involved in this dispute is
warranty work, i.e., work for which Brod and Grand
Metal remained liable following delivery of their prod-
ucts to worksites.
Respondent argues that its International's constitution,
as amended in 1983, precludes warranty work such as
that performed by shop employees of Brod and
McClung. That argument has no merit. Brod and Grand
Metal had a long bargaining relationship with Local 544
which resulted in contracts that, through practice, em-
bodied performance of warranty work in the field by
shop employees of the two companies. Starting in 1980,
Respondent unilaterally sought to change the past prac-
6 Elgin credibly testified that he never had done installation work for
Grand Metal; that his work is limited to shop and warranty work. As
noted above, Grand Metal has contracted out all of its installation work
since March 1979.
7 Elgin and Richard Koessel, Grand Metal's vice president, credibly
testified that a similar incident occurred earlier in 1982, on a warranty
job at Kaiser Hospital. After some discussion between Grand Metal and
Respondent, Elgin was permitted to finish the job.
tice of the parties and their bargaining agreements,
through fines levied against, and personal pressure on,
employees of Brod and McClung. Such action consti-
tutes a violation of the Act, as alleged by the General
Counsel.8
Respondent argues that the International's constitution
prohibits the companies' shop employees from doing
warranty work in the field, but that fact is immaterial. It
appears possible that the constitution was amended, par-
tially or entirely, in response to Respondent's problem
with Brod and Grand Metal, but whether or not such
was the case, Respondent legally cannot use the constitu-
tion as a basis for its actions herein, any more than it can
attempt to achieve its goal by fining and pressuring the
Companies' employees. As discussed above, the past
practice of the parties established the right of the two
Companies to assign warranty work under the collective-
bargaining agreement to shop employees, and Respond-
ent's only legal avenue of relief would be through fur-
ther bargaining.
Respondent argues that the past practice is widespread
and well known, wherein shop employees are precluded
from doing work in the field. Elgin and Lyman so testi-
fied, and Lyman testified that "I have chased a lot of
production workers off of union jobs." Such may well be
the case, but that is beside the point. A contractual
matter is involved herein-not a matter of intraunion
practice or union rules.
Finally, Respondent argues that Scofieldg controls the
issue herein, because Brod and Grand Metal "sought to
create a new classification of factory warranty techni-
cian" in the face of Respondent's right to enforce a prop-
erly adopted rule relative to field work. Scofield is not
applicable herein, since a "new classification" is not in
issue. The field warranty work of Brod and Grand
Metal, with Respondent's past occurrence, is far from
new-it has been going on for more than 30 years.
Brod's attempt to negotiate a specific contractual modifi-
cation was made solely to keep the peace with Respond-
ent, after Respondent already had embarked on its
course of unlawful pressure on the employees of Brod
and Grand Metal. Respondent not only refused to nego-
tiate the matter-it continued its pressure against the two
Companies and their employees.
It is found that Respondent violated the Act as al-
leged.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Brod & McClung-Pace Co. and Grand Metal Prod-
ucts Corp. are employers within the meaning of Section
2(2), (6), and (7) of the Act.
3. By threatening Brod's employee Keith Manley and
Grand Metal's employee Fred Elgin and others with
union disciplinary action, including court collectible
fines, if they continued to perform warranty work with
' Painters District Council 9, 186 NLRB 964 (1970). See also Teamsters
Local 100 (Marine Materials), 214 NLRB 1094 (1974), and Operating Engi-
neers Local 39 (San Jose Hospital), 240 NLRB 1122 (1979).
9 Scofield v. NLRB, 394 U.S. 423 (1969).
119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the object of attempting to achieve a unilateral, midterm
modification of collective-bargaining agreements with
Brod and Grand Metal, Respondent violated Section
8(bX3) and (IXA) of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(3) and (I)(A)
of the Act, I shall recommend that Respondent be or-
dered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of
the Act.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended l o
ORDER
The Respondent, Sheet Metal Workers International
Association, Local No. 16, shall
1. Cease and desist from threatening employees of
Brod & McClung-Pace Co. and Grand Metal Products
Corp. with disciplinary action, including court collectible
fines, if they continue to perform warranty work, with
the object of attempting to achieve a unilateral, midterm
modification of collective-bargaining agreements with
Brod and Grand Metal.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act.
(a) Post at its meeting halls copies of the attached
notice marked "Appendix."" Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by Respondent's authorized represent-
ative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
's If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 19
sufficient signed copies of the aforesaid notice for posting
by Brod & McClung-Pace Co. and Grand Metal Prod-
ucts Corp., if they are willing to do so, in places where
notices to employees customarily are posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees of Brod &
McClung-Pace Co. and Grand Metal Products Corp.
with disciplinary action, including court collectible fines,
if they continue to perform warranty work, with the
object of attempting to achieve a unilateral, midterm
modification of collective-bargaining agreements with
Brod and Grand Metal.
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL No. 16
120