Sheet Metal Workers', Local 141

National Labor Relations Board - Board Decisions

Dec 8, 1969

179 N.L.R.B. 995 (N.L.R.B. 1969)

SHEET METAL WORKERS ', LOCAL 141
Sheet Metal Workers' International Association,
Local Union No. 141, AFL-CIO and its Agent,
Ray Bickers and Metal Polishers, Buffers, Platers
and Helpers International Union, Local 68,
AFL-CIO and B & W Metals Company. Case
9-CD- 168
December 8, 1969
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,
following a charge filed by Metal Polishers , Buffers,
Platers , and Helpers International Union, Local 68,
AFL-CIO, herein called Metal Polishers , alleging
that Sheet Metal Workers ' International
Association , Local Union No. 141, AFL-CIO, and
its Agent Ray Bickers , herein called Respondents or
Sheet Metal Workers, and Ray Bickers , respectively
violated Section 8 (b)(4)(D) of the Act. A duly
scheduled hearing was held before Stephen S.
Frockt, Hearing Officer, on June 17 and 18, 1969,
and on July 10,. 1969. All parties appearing were
afforded full opportunity to be heard , to examine
and cross-examine witnesses , and to adduce evidence
bearing upon the issues . Thereafter, the Metal
Polishers , the Respondents , and B & W Metals
Company, Inc., herein called Company or
Employer, filed briefs before the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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
affirmed.
Upon the entire record in this case , the Board
makes the following findings:
I. THE BUSINESS OF THE COMPANY
The parties stipulated that the Company is an
Ohio corporation engaged in the business of
manufacturing and installing stainless steel
food-servicing equipment, and maintains its
principal office at Fairfield, Ohio. In the operation
of its business, the Employer annually receives
goods and materials from outside the State of Ohio
valued in excess of $50,000. We find that the
Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
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The parties stipulated, and we find, that the Sheet
Metal Workers and the Metal Polishers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work, as stipulated by the parties at
the hearing, concerns the assignment of the
following work task: "The grinding and polishing of
stainless steel food-servicing equipment, viz, dish
tables, cafeteria counters, shelf bars, conveyors, and
all other such equipment where the welding thereon
is exposed to view, at the Jewish Hospital addition
construction site, Cincinnati, Hamilton County,
Ohio."
B. Background and Facts of the Dispute
The Company's business is the installation of
food-servicing equipment such as counters, shelves,
hoods, and serving trays. The installation of this
equipment involves the setting up, leveling,
assembling, and welding of such equipment. The
setting up, leveling, assembling, and welding have
been for many years the work of the sheet metal
workers whereas the finishing processes, including
grinding and buffing of the exposed welds, have
been with minor exceptions the work of the metal
polishers. Elmer Weddendorf, president of the
Company, testified that the metal polishers normally
perform the disputed work in the field, and that they
always perform work of the same type in the
Employer's plant. However, when there is only a
small amount of finishing work to be done in the
field, the sheet metal workers, who install the
equipment, may be called upon to finish the work
depending upon economic factors. For example, if
there is a small amount of finishing work to be
done, amounting to less than a day's work for one
man, and the job is located a great distance from
Cincinnati, Ohio, such as in Washington, D.C.,
Florida, or other distant sites, the finishing is done
by the sheet metal workers for obvious reasons of
economy. The record shows that the metal polishers
have the skills required for the finishing work and
have historically performed such work in the
Employer's plant.
The plant employs members of both crafts and
has dual contracts. There is only one other kitchen
equipment contractor, Master Craft Metals, who
employs members of both crafts in the Cincinnati,
Ohio, area. There appears to be a conflict in
testimony concerning the practice of Master Craft
Metals in its assignment of the finishing work.
While supervisors of Master Craft Metals testified
that where considerable amount of finishing work is
179 NLRB No. 156
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in the field such work is performed by the
metal polishers, the sheet metal workers employed
by that employer testified that nearly all of the
finishing work done in the field is performed by
them.
In January 1968, B & W Metals was awarded a
contract to install kitchen equipment in an addition
to the Jewish Hospital in Cincinnati. In September
1968, the actual on-site installation of the equipment
began . This work progressed without incident until
April 1969, at which time the grinding and polishing
of certain exposed welds on the stainless steel
kitchen equipment was scheduled to begin. B & W
Metals assigned the work of grinding and polishing
the stainless steel food-serving equipment that had
been installed on the job to employees represented
by the Metal Polishers.
Weddendorf stated that Bickers, agent for the
Sheet Metal Workers, told him on or about April
29, 1969, that no other craft was going to perform
the disputed work but the sheet metal workers, and
that unless the metal polishers belonged to the
Building Trade Council they would not be permitted
to perform the work. Bickers also told Weddendorf
that the sheet metal workers would strike and picket
the jobsite to enforce their demand for the work in
dispute. Weddendorf further testified that Metal
Polishers' Steward, James Watson, told him shortly
thereafter, that the metal polishers would strike and
picket at both the jobsite and the Employer's plant
if the Employer changed its assignment.
C. Contentions of the Parties
The Metal Polishers and Employer contend that
the work in dispute has historically been assigned to
the metal polishers by the Employer and other
employers in the Cincinnati, Ohio, area, and that
the metal polishers possess greater skills necessary
to perform the work.
The Sheet Metal Workers contend that the
disputed work should be performed by its members
whom it believes are better qualified to perform said
work.
D. Applicability of the Statute
Before the Board proceeds with a Determination
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.
The uncontested facts show that the Employer
assigned the disputed work to the metal polishers.
The Sheet Metal Workers thereafter claimed the
work for its members and threatened to strike and
to picket the project if the work was not reassigned
to its members. James Watson, president of the
Metal Polishers' Local, threatened the Employer, B
& W Metals, with a strike and picketing of the
jobsite if the work in dispute was assigned to the
sheet metal workers. Accordingly, we conclude that
there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated, and that the
dispute is properly before the Board for
determination 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
after due consideration of the various relevant
factors.' We conclude that the following factors are
relevant in determining the claims of the parties
herein:
1. Collective-bargaining agreements
Both labor organizations have been recognized by
the Employer for a number of years and have been
parties to collective-bargaining agreements with the
Employer.
Although the Employer has a contract with Local
224 of the Sheet Metal Workers, when the
Employer performs work in the Cincinnati, Ohio
area its sheet metal workers are covered by the
provisions of its associationwide contract. That
contract covers employees engaged in the
"manufacture , fabrication, assembling , handling,
erection , installation , dismantling , conditioning . . ."
but does not specifically mention finishing or
polishing of metal welds on installed equipment. In
essence , the Sheet Metal Workers contend that
installation should be interpreted to include the
finishing or polishing of exposed metal welds, the
disputed work.
The agreement between the Employer and the
Metal Polishers likewise does not specifically touch
on the work in dispute. However, the Employer does
consult with and get the approval of the Polishers
Union when it utilizes sheet metal workers for
sporadic outside polishing work and this is in accord
with Article XII, Section 1, of the Metal Polishers
Agreement.' Thus, Employer's and Metal Polishers
past interpretation of this clause of their contract
favors the continued assignment of polishing work
to the metal polishers.
2. Company and area practice
As previously noted, the Sheet Metal Workers
principal basis for its claim to the disputed work
rests upon the claim that grinding and polishing are
only a small part of the installation of the
equipment, and that its members have historically
performed the work in such circumstances.
B & W Metals has been in existence for 23 years,
and the consistent assignment of this work has been
'International Association of Machinists. Lodge No 1743 (J. A Jones
Construction Company). 135 NLRB 1402.
'Art XII, sec. 1, states "All outside work coming under the jurisdiction
of the Union will be done by members of the Metal Polishers . unless
otherwise agreed to by said Union "
SHEET METAL WORKERS ', LOCAL 141
to the metal polishers. There have been a few
limited occasions when a sheet metal worker was
permitted to polish in the field , and these occasions
were limited to the time when there was only a
small amount of polishing to be done, or the job
was a great distance from Cincinnati and the
polishing work so limited and simple that it was not
economically feasible to dispatch a metal polisher.
The only other employer in the area, who performs
similar work and has contracts with both the Metal
Polishers and the Sheet Metal Workers, claims to
assign the type of work in dispute to the metal
polishers. The Sheet Metal Workers perform the
type of work in dispute when companies have
contracts only with Sheet Metal Workers and their
affiliated locals. The Company's past practice is
consistent with its assignment of the disputed work
to the metal polishers . As to area practice, the
record contains conflicting testimony and is of little
value in resolving this dispute.
3. Skills, Efficiency, and Economy of
Operations
The disputed work involves a great deal of skill
and attention , as a slight improper use of tools or
procedures could damage the stainless steel material
beyond the point of repair. This can be caused by
the fact that , when the metal is ground and polished,
the heat emitted therefrom could be hot enough to
split the weld seams and otherwise damage the
equipment.
Both the sheet metal workers and the metal
polishers have an apprentice program , and a number
of years is required for members of each craft to
progress from apprentice to journeyman status.
Although both crafts work with metal, the sheet
metal workers are engaged in the fabrication of the
equipment, including cutting , bending, and fastening
sheet metal components ; once the equipment is
assembled , metal polishers place a proper finish on
the equipment. The tools that the sheet metal
workers use are shears, drills, hammers, and levels,
while the metal polishers use buffers, grinders, and
polishing compounds.
Business Manager of the Sheet Metal Workers,
Roy Bickers , testified that out of approximately 860
members of his Local Union, no more than 11 were
qualified to do the work involved and they were all
employed at the time.
As to the efficiency and economy of operation,
Weddendorf, president of the B & W Metals
Company, testified that except in unusual
circumstances , it is more efficient in the operation
of his business to assign the work in dispute to the
metal polishers.
As to skills involved , it appears clear that metal
polishers possess a greater degree of skill, and that
only a limited number of sheet metal workers are
capable of performing such work, with such
incidental skill having been acquired in the
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performance of their major function, the installation
of the equipment.
The record also establishes that, as a general rule,
utilization of metal polishers to perform the
disputed work is more efficient and economical.
Conclusion
On the basis of the foregoing considerations, it is
clear that substantially all of the relevant factors
favor an assignment of work to the metal polishers.
Such factors as the Employer's past practice,
including the parties interpretation of the contract
with the Metal Polishers Union, the skill, training,
and experience of the metal polishers, and the
efficiency and economy of the present operation,
favor the present assignment . Accordingly, we shall
determine the dispute by confirming the Employer's
present assignment to the metal polishers. Our
present determination is limited to the particular
controversy which gave rise to this proceeding, the
job at the Jewish Hospital addition construction site,
Cincinnati, Hamilton County, Ohio.
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
makes the following Determination of Dispute:
1. Employees employed by B & W Metals
Company, who are represented by the Metal
Polishers, Buffers, Platers and Helpers International
Union, Local 68, AFL-CIO, are entitled to the work
of grinding and polishing of stainless steel
food-servicing equipment, viz, dish tables, cafeteria
counters, shelf bars, conveyors, and all other such
equipment where the welding thereon is exposed to
view, at the Jewish Hospital addition
constructions ite, Cincinnati, Hamilton County,
Ohio.
2. Sheet Metal Workers' International
Association, Local Union No. 141, AFL-CIO, and
its Agent Roy Bickers, are not entitled by means of
conduct proscribed by Section 8(b)(4)(D) of the Act
to force or require B & W Metals Company to
assign the aforementioned work to its members.
3. Within 10 days from the date of this Decision
.and Determination of Dispute, Sheet Metal
Workers' International Association, Local Union
No. 141, AFL-CIO, and its Agent, Roy Bickers,
shall notify the Regional Director for Region 9, in
writing, whether or not it will refrain from forcing
or requiring B & W Metals Company, by means
proscribed by Section 8(b)(4)(D) of the Act, to
assign the work in dispute to employees represented
by Sheet Metal Workers' International Association,
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 141, AFL-CIO, rather than to Platers and Helpers International Union, Local 68,
employees represented by Metal Polishers, Buffers , AFL-CIO.