Sheet Metal Workers, Local 12

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 141 (N.L.R.B. 1973)

SHEET METAL WORKERS , LOCAL 12 141
Sheet Metal Workers ' International Association, Local
12, AFL-CIO and Builders Association of Eastern
Ohio and Western Pennsylvania and A . A. Samuels
Sheet Metal Co., Inc. , of Pennsylvania and A. A.
Samuels Sheet Metal Company, Inc. and Sheet
Metal Workers' International Association , Local 5,
AFL-CIO. Case 6-CD-457
April 25, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Builders Association of Eastern Ohio
and Western Pennsylvania, the bargaining agent for
A. A. Samuels Sheet Metal Co., Inc., of Pennsylvania
and A. A. Samuels Sheet Metal Company, Inc. (here-
in collectively referred to as the Employer), alleging
that Sheet Metal Workers' International Association,
Local 12, AFL-CIO (herein referred to as Local 12),
has violated Section 8(b)(4)(D) of the Act. On Octo-
ber 24, 1972, a hearing was held before Hearing Offi-
cer F. J. Surprenant. The Employer and Local 12
appeared at the hearing where they were afforded the
opportunity to present evidence bearing on the issues.
Sheet Metal Workers' International Association, Lo-
cal 5, AFL-CIO (herein referred to as Local 5), did
not enter an appearance or otherwise participate in
the hearing, although it was duly served with a copy
of the Board's notice of hearing. Thereafter the case
was transferred to the Board for its determination.
The Employer filed a brief with the Board which has
been duly considered.
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 Hearing Officer's rul-
ings made at the hearing and finds that they are free
of prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I THE BUSINESS OF THE EMPLOYER
A. A. Samuels Sheet Metal Co., Inc., of Pennsylva-
nia, a Pennsylvania corporation, and A. A. Samuels
Sheet Metal Company, Inc., an Ohio corporation,
with places of business at Erie, Pennsylvania, and
Youngstown, Ohio, respectively, are engaged in the
fabrication and installation of heating and ventilating
duct work. The two corporations are affiliated, with
common ownership, common officers, and common
labor policy, and constitute a single integrated enter-
prise. During the past 12-month period, A. A. Sam-
uels Sheet Metal Co., Inc., of Pennsylvania purchased
directly from outside the Commonwealth of Pennsyl-
vania goods and materials valued in excess of $50,000
for use in the Commonwealth of Pennsylvania. Dur-
ing the same period, A. A. Samuels Sheet Metal
Company, Inc., purchased directly from outside the
State of Ohio goods and materials valued in excess of
$50,000 for use in the State of Ohio. The parties stip-
ulated, and we find, that the Employer 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
The parties stipulated, and we find, that Local 12
and Local 5 are labor organizations within the
meaning of Section 2(5) of the Act.
III THE DISPUTE
A. The Work in Dispute
The work in dispute is the fabrication of the
straight duct work which is to be installed at the
Welch Foods , Incorporated, facility in northeast
Pennsylvania.
B. Background and Facts of the Dispute
The Employer has a collective-bargaining agree-
ment with Local 5 covering the employees employed
at its Youngstown plant and a separate agreement
with Local 12 covering its Erie plant employees. Over
a period of several years, the Employer has assigned
the bulk of the work of fabricating straight duct for
projects in Local 12's geographic jurisdictional area to
employees at the Youngstown shop where it has a
special machine which can fabricate the duct with
about one-tenth of the labor that would be required
to perform it by hand. Throughout this period Local
12 frequently objected to the assignment of such work
to the Youngstown employees. During the past 5
years Local 12 began taking overt steps to prevent the
installation of the straight metal duct fabricated in
Youngstown by stopping work or threatening to stop
work on several projects to force the Employer to
assign the disputed work to the employees represented
by it. Local 12 claims that until the last 5 years em-
ployees it represented at the Erie shop had enough
203 NLRB No. 23
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to keep them busy, but in recent years the
amount of work has diminished to the point where,
just prior to the hearing, the Employer had laid off
some of the Erie shop employees.
The immediate dispute arises out of the Employer's
assignment to the employees at the Youngstown loca-
tion of the fabrication of the straight sheet metal ducts
to be installed at a plant operated by Welch Foods,
Inc., in northeast Pennsylvania, within the geographic
jurisdiction of Local 12. The Employer assigned the
fabrication of the sheet metal fittings and some risers
to the Erie employees but assigned the fabrication of
the straight metal sheet ducts to the Youngstown em-
ployees. When the Youngstown employees had com-
pleted the fabrication of the straight duct, it was
shipped to the Erie shop for installation at the jobsite.
The business representative of Local 12 advised the
Employer that the material would not be installed.
Thereafter the Erie employees represented by Local
12 refused to install the straight duct fabricated at the
Youngstown shop, and the instant charge was filed.
Following a petition for an injunction under Section
10(1) of the Act, an agreement was reached to resume
the work at the Welch Foods jobsite pending the hold-
ing of the 10(k) hearing.
C. Contentions of the Parties
Local 12 essentially contends that no jurisdictional
dispute exists within the meaning of Section 10(k) of
the Act, since Local 5 has disclaimed any dispute over
the work. Furthermore, Local 12 argues that the mat-
ter is a contract dispute between it and the Employer
and the Board should defer the dispute to the volun-
tary procedures agreed upon by the parties.
The Employer argues that a jurisdictional dispute is
raised by the instant facts and that deferral is not
appropriate under the dispute resolution procedures
in its contract with Local 12 since Local 5 is not a
party to that agreement. The Employer further claims
that the factors of past practice and economy support
its assignment of the work to its employees repre-
sented by Local 5. The Employer also requests that
the Board's determination of this dispute be made
effective for the entire area under the jurisdiction of
Local 12.
D. Applicability of the Statute
Before the Board may proceed with the determina-
tion of a 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 record shows that in late July 1972, the busi-
ness representative of Local 12 told the Employer's
supervisor and employees at the Erie location that the
straight metal duct fabricated at Youngstown was not
to be unloaded or installed. Thereafter the Erie em-
ployees represented by Local 12 refused to install the
straight duct which had been fabricated at Youngs-
town for the Welch project, claiming the fabrication
of the straight duct belonged to them. On these facts,
we are satisfied that Local 12 refused to handle or
work on the straight duct fabricated at Youngstown
with an object of forcing the Employer to assign the
disputed work to employees represented by it rather
than to the Employer's Youngstown employees repre-
sented by Local 5. Accordingly, we find reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred.'
Local 12's contention that no jurisdictional dispute
exists since Local 5 disclaims the disputed work is
without merit. In this regard the Board has held that
such disclaimers are ineffective where, as here, the
employees represented by the disclaiming organiza-
tion continue to perform the disputed work .2
With respect to Local 12's contention that the
Board defer to the contractually agreed-upon dispute
settlement procedures, it does not appear that it is
appropriate in the present situation to quash the no-
tice of hearing . First, the record fails to establish that
all parties are bound to the same settlement proce-
dures, and does not show whether Local 5 is bound
to any settlement procedure.' Second, even if the rec-
ord did show that all the parties were bound by the
procedure set forth in article X of Local 12' s agree-
ment with the Employer,4 that procedure does not
appear to cover a jurisdictional dispute arising be-
tween sister locals of the Sheet Metal Workers, as here
presented. While article I, section I of that agreement
states that the agreement covers, in addition to the
work specifically mentioned therein, "all other work
included in the jurisdictional claims of the Sheet Met-
al Workers' International Association," article II pro-
vides for the subcontracting of certain work by the
i Our dissenting colleague disagrees He would quash the notice of heanng,
inter alga, on the basis that Local 12 was "claiming fairly claimable unit
work " The facts are clearly to the contrary, inasmuch as the evidence estab-
lishes that the work in dispute has with rare exception been performed by the
Employer's employees at its Youngstown plant . See New York Paper Cutters'
& Bookbinders ' Local Union No 119, etc (Automatic Sealing Service, Inc ), 146
NLRB 435
2 See , e.g., Laborers International Union of North America, Local 935, AFL-
CIO (International Drywall, Inc), 191 NLRB 467, Local 926, International
Union of Operating Engineers (High Point Sprinkler Company of Atlanta), 191
NLRB 603.
7 The record does not contain the agreement between the Employer and
Local 5
4 Art X of the agreement between the Employer and Local 12 provides for
a four -step procedure for settling contractual disputes between the parties,
culminating in a final and binding determination (except in case of deadlock)
by the National Joint Adjustment Board established by the Sheet Metal
Workers' International Association and the Sheet Metal and Air Condition-
ing Contractors' National Association
SHEET METAL WORKERS , LOCAL 12
Employer, including prefabrication , provided the Youngstown employees represented by Local 5.
Employer agrees to pay the employees engaged in
such fabrication the prevailing wage for comparable
sheet metal fabrication. Local 12 does not contend
that the Employer is paying the Youngstown employ-
ees represented by Local 5 less than the prevailing
wage for comparable sheet metal fabrication.' In any
event, Local 12 does not contend, and the Employer
specifically denies, that the Employer ever evinced an
unequivocal intent to be bound by the intraunion
method of jurisdictional dispute settlement .6 For these
reasons, the present case is clearly not an appropriate
one to quash the notice of hearing because of private
dispute settlement procedures'
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors . Certain fac-
tors traditionally considered by the Board in making
jurisdictional awards are not present in this proceed-
ing. Thus, the record does not show certification by
the Board or jurisdictional awards by joint boards.
Similarly, there has been no showing that employees
represented by either local possess special skills, or
even whether any special skills are required in the
performance of said work . The record does, however,
contain evidence of the following factors to which we
can look in making a determination:
1. Past practice and assignment
The record shows that since at least 1961, the Em-
ployer has assigned the bulk of the work of fabricating
straight duct, without regard to where the order for
the duct originated, to its employees at the Youngs-
town shop represented by Local 5. While there is some
evidence in the record that on occasion the Employer
assigned this work to its employees at the Erie shop
in order to keep them busy during slack times, it ap-
pears that such assignments were the exception rather
than the rule. Thus, the Employer's assignment in the
instant dispute appears to be consistent with its past
practice. Accordingly, we find past practice and the
Employer's assignment are factors favoring the
5 In fact , it would appear that the Employer's contract with Local 5 would
establish the prevailing wage to be used in applying this section of the
agreement to subcontractors in Ohio.
6 See Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo
Workers Local Union No. I of Tennessee (Shelby Marble & Tile Co), 188
NLRB 148.
r Cf. Building Material & Construction Teamsters Union Local 216 (Bigge
Drayage Company), 198 NLRB 1052, where the Board deferred under cir-
cumstances where the record showed that all the parties were bound by the
same procedure and the contracts clearly provided for the resolution of such
intraunion disputes.
2. Economy
143
It is uncontradicted that the machine located at the
Youngstown location can produce the straight duct in
one-tenth of the labor time it takes to fabricate the
straight duct at the Erie location or elsewhere. Ac-
cordingly, the factor of economy favors the
Employer's assignment to its Youngstown employees,
represented by Local 5.
3. Collective-bargaining agreements
Local 5's agreement with the Employer is not con-
tained in the record . However , Local 12's agreement
with the Employer is in evidence and that contract
specifically allows the Employer to subcontract the
work in dispute as long as the subcontractors "pay
their employees engaged in such fabrication not less
than the prevailing wage for comparable sheet metal
fabrication." Local 12 does not contend that the Em-
ployer is paying the Youngstown employees less than
the prevailing wage. We find, therefore, the
Employer's agreement with Local 12 is not inconsis-
tent with its assignment of the disputed work to the
Youngstown employees.
Consequently, on the basis of the entire record, we
shall determine the instant jurisdictional controversy
by awarding fabrication of straight duct which is to be
installed at the Welch Foods, Inc., facility in north-
east Pennsylvania to the employees at the Employer's
Youngstown, Ohio, shop represented by Local 5, rath-
er than to the employees at the Employer's Erie, Penn-
sylvania, shop represented by Local 12.
Scope of Determination
As previously noted, the Employer requested in its
brief that 'the Board's determinations herein apply to
the entire area of Local 12's jurisdiction. In the past,
in circumstances where there is an indication that the
dispute is likely to recur, it has been the Board's policy
to make its award broad enough to cover likely future
disputes between the same parties. Although the rec-
ord here shows that Local 12 has in the past threat-
ened to stop work on several projects of the Employer,
this is the first dispute to be litigated by the parties;
and although Local 12 was also claiming the disputed
work at another Employer project at the time of the
hearing, there is no indication that Local 12 will con-
tinue to claim such work in the future. Accordingly,
we will limit the determination to the particular con-
troversy which gave rise to this proceeding.8
Plasterers Local Union No 79, Operative Plasterers and Cement Masons
Continued
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 hereby
makes the following Determination of Dispute:
1. Employees of A. A. Samuels Sheet Metal Com-
pany, Inc., at its Youngstown, Ohio, shop, who are
represented by Sheet Metal Workers' International
Association, Local 5, AFL-CIO, are entitled to per-
form the work of fabricating straight duct work for
the Welch Foods, Inc., project.
2. Sheet Metal Workers' International Association,
Local 12, AFL-CIO, is not entitled by means pros-
cribed by Section 8(b)(4)(D) of the Act to force or
require A. A. Samuels Sheet Metal Co., Inc., of Penn-
sylvania and A. A. Samuels Sheet Metal Company,
Inc., to assign the above-described work to employees
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers'
International Association, Local 12, AFL-CIO, shall
International Association of Houston, Texas (Southwestern Construction Com-
pany), 167 NLRB 185; compare Local 299, Sheet Metal Workers (Metalab
Equipment Co), 173 NLRB 1329
notify the Regional Director for Region 6, in writing,
whether or not it will refrain from forcing or requiring
A. A. Samuels Sheet Metal Co., Inc., of Pennsylvania
and A. A. Samuels Sheet Metal Company, Inc., by
means proscribed by Section 8(b)(4)(D) of the Act, to
assign the disputed work to its members, rather than
to employees of A. A. Samuels Sheet Metal Compa-
ny, Inc., represented by Sheet Metal Workers' Inter-
national Association, Local 5, AFL-CIO.
MEMBER FANNING , dissenting:
I would quash the notice of hearing in this case. The
record shows that this Employer, under contract to
two local unions, both affiliated with the same Inter-
national Union, has committed itself to resolve con-
tractual disputes through an Adjustment Board,
jointly established and maintained in the Sheet Metal
Industry by the Sheet Metal International Union and
the Association of Sheet Metal Contractors. More-
over, Local 12 claims that the work in dispute is locat-
ed within its territorial jurisdiction and should be
performed as unit work under the Employer's con-
tract by employees whom it represents. I agree that
Local 12 is claiming fairly claimable unit work. Ac-
cordingly, I find (1) that the parties have an agreed-
upon method of resolving this dispute through their
National Joint Adjustment Board and (2) that, in any
event, Local 12 has a primary claim to this work.