Sheet Metal Workers, Local 54

National Labor Relations Board - Board Decisions

Apr 20, 1973

203 N.L.R.B. 74 (N.L.R.B. 1973)

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers Local Union No . 54 and The
Goodyear Tire & Rubber Company and O .T.D. Cor-
poration. Case 23-CD-292
April 20, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING , KENNEDY , AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed on September 28, 1972, by The Good-
year Tire & Rubber Company (hereinafter Good-
year), alleging that Sheet Metal Workers Local Union
No. 54 (hereinafter Sheet Metal Workers), had viola-
ted Section 8(b)(4)(D) of the Act. A hearing was held
pursuant to notice at Houston , Texas, on December
7, 1972, before Hearing Officer Robert G. Levy II.
Goodyear, Sheet Metal Workers, and O.T.D. Corpo-
ration (hereinafter O.T.D.) appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross -examine witnesses , and to adduce
evidence on the issues . The employees of O.T.D. Cor-
poration made no appearance. Thereafter, Goodyear
and Sheet Metal Workers filed briefs.
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board
makes the following findings:
I. THE EMPLOYERS
The parties stipulated that The Goodyear Tire &
Rubber Company is an Ohio corporation with offices
and places of business located in the various States of
the United States including Houston, Texas. Good-
year at its Houston , Texas, operation manufactures
synthetic rubber. During the preceding 12 months, a
representative period , Goodyear purchased goods
and materials valued in excess of $50 ,000, which
goods and materials were shipped directly from points
located outside the State of Texas to its Houston oper-
ation.
The parties stipulated that O.T.D. Corporation is a
Delaware corporation with its principal office and
place of business located at Itaska , Illinois , where it
is engaged in the business of designing and manufac-
turing containers for industry and the leasing of rail-
way cars for industry. During the preceding 12
months, a representative period, O.T.D. has pur-
chased goods and materials valued in excess of
$50,000 which were shipped from points and places
located outside the State of Illinois and shipped di-
rectly to O.T.D.'s place of business in Illinois.
Upon the facts so stipulated , we find that both
Goodyear and O .T.D. are engaged in commerce with-
in the meaning of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION
The parties stipulated, and we find, that Sheet Met-
al Workers Local Union No. 54 is a labor organiza-
tion within the meaning of Section 2(5) of the
National Labor Relations Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the assembling of aluminum
box containers (metal containers used with specially
made railroad boxcars for packaging and shipping
synthetic rubber) at The Goodyear Tire & Rubber
Company's Houston chemical plant in Houston, Tex-
as.
B. Background and Facts of the Dispute
Goodyear, at its Houston facility, manufactures
synthetic rubber which it then ships to other plants for
conversion into tires and other rubber products.
Goodyear and O.T.D. recently signed a lease arrange-
ment whereby O.T.D. is obligated to supply Good-
year with assembled metal containers along with
boxcars for use in making such shipments. These con-
tainers are manufactured by O.T.D. at its plant in
Itaska, Illinois. Approximately half of the containers
are shipped in unassembled form and are assembled
by O.T.D. in the Houston area . As part of the lease
agreement with O.T.D., Goodyear furnishes a place to
assemble the containers.
On September 27, 1972, O.T.D. arrived at the
Goodyear plant with a crew of three persons (Mr.
Ogle, president of O.T.D., and two supervisors), to
assemble some of these aluminum containers. Pur-
suant to a previously made arrangement , Manpower
Incorporated, a labor contractor in the Houston area,
furnished O.T.D. with additional men on September
27 and 28. While work was in progress, on the morn-
ing of September 27, Berton H. Gates, a Sheet Metal
Workers business agent , came to the plant saying he
wanted to see the work being done on the aluminum
203 NLRB No. 21
SHEET METAL WORKERS , LOCAL 54 75
containers. Before Gates went to see the work, he
talked with Goodyear's master mechanic, Howard J.
Levine. Levine testified that after he described the
work Gates told him that the work being done on the
containers was sheet metal work under the jurisdic-
tion of his local. Levine further testified that after
Gates observed the work he again said that the work
was sheet metal work and that it came under the
jurisdiction of his local. Fred L. Van Osdall, personnel
manager of the Goodyear Houston chemical plant,
testified that after Gates observed the work Gates
stated that he had assured himself that the work was
"our work." Van Osdall then told Gates that the work
was being done by O.T.D. employees and for O.T.D.
Corporation. Van Osdall testified that he also told
Gates that O.T.D. had done the work in the plant
approximately a year to 18 months before with their
own employees and that there was no argument from
Gates at that time. According to Van Osdall, Gates
replied to the effect that he had been cheated out of
this work before and he was not going to let Goodyear
cheat him out of it again. Van Osdall then told Gates
that all he could do was try to get O.T.D. to make a
change and asked how much time Gates would give
him. Gates replied that he would give him a day, and
half of that day was already gone. Gates acknowl-
edges telling Goodyear officials that the work was
sheet metal work and saying that he thought that a
sheet metal worker ought to do it. However, he states
that he never claimed the work in terms indicating it
had to be done by members of Local 54.
Later on September 27 at approximately 3:15 p.m.,
Gates began picketing Goodyear's main gate with a
sign purportedly protesting substandard wages and
conditions on the job.' Van Osdall went to the gate
and told Gates that if he wanted to picket O.T.D. he
should picket construction gate No. I as that was the
gate O.T.D. employees were using. Gates refused to
move? Gates picketed until approximately 4 p.m. on
September 27. At approximately 4:15 p.m. that day,
Goodyear officials posted a sign at the main gate
notifying employees of O.T.D. that they were preclud-
ed from using the gate and that they must use con-
struction gate No. 1. At that same time, Goodyear
officials posted a sign at construction gate No. 1, re-
serving that gate for employees of O.T.D.
i Gates testified that the sign read "Sheet Metal Workers L.U. No. 54,
AFL-CIO Protest Substandard Wages & Conditions Being Paid On This Job
By O.T.D. Inc. Sheet Metal Workers L.U. No. 54 Does Not Intend By This
Picket Line To Induce Or Encourage The Employees Of Any Other Employ-
er To Engage In A Strike Or A Concerted Refusal To Work." Van Osdall
testified that the sign said something to the effect that Local 54 protested the
substandard wages of O.T.D.
2 0 T.D. personnel, including the Manpower employees, had entered the
main gate that morning . However , at noon they had left through the con-
struction gate and had returned to work through the construction gate.
Gates again picketed the Goodyear main entrance
on the morning of September 28. Gates testified that
he arrived at this site at approximately 6:30 a.m.3 At
approximately 5 or 10 minutes before 7 o'clock, Gates
testified that he noticed the reserved gate sign and
that shortly thereafter the guard, Massey, came out
and told Gates that there was another gate that was
being used by the construction workers while pointing
in the direction of gate No. 1. Gates said he continued
to picket at the main gate until approximately 7:15 to
7:20, after which he went to the construction gate
where he picketed until 8 a.m. On the morning of
September 28, 27 Goodyear employees were late re-
porting for work and none of the 6 sheet metal work-
ers reported for work. Goodyear witnesses testified
that on the morning of September 28 they observed
approximately 30 to 35 employees at one time on the
walk outside the gate where the picketing was taking
place and that all of the 6 sheet metal workers were
seen at that location.
C. Contentions of the Parties
Goodyear contends that Sheet Metal Workers has
violated Section 8(b)(4)(D) of the Act by exercising
coercive pressure on Goodyear to require O.T.D. to
assign the work to its members. O.T.D. contends that
the work is properly assigned tb its own employees.
Sheet Metal Workers contends that the record in this
case fails to reveal a violation of Section 8(b)(4)(D) in
that (a) there are not two competing groups of em-
ployees claiming the work in dispute, and (b) there is
no reasonable cause to believe there was a violation
of any of the provisions of Section 8(b)(4)(D). Sheet
Metal Workers, while denying that it ever demanded
that O.T.D. assign the work to employees represented
by the Sheet Metal Workers , nevertheless states that
it would not disclaim the work should it be awarded
to the employees it represents.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act
it must be satisfied that there is reasonable ground to
believe that Section 8(b)(4)(D) has been violated. In
the instant case, this requires first a determination as
to whether there are two competing groups of employ-
ees claiming the work in question and whether Sheet
Metal Workers has claimed the work and has used
proscribed means to enforce this claim.
Sheet Metal Workers contends that the personnel
of O.T.D. do not constitute a competing group of
7 Massey, the gate guard, testified that Gates arrived at approximately 6
a.m.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in that the O.T.D. personnel working at the
Goodyear plant are supervisors, and that the individ-
uals obtained through Manpower are a shifting,
amorphous group of individuals who do not consti-
tute a competing group of employees within the
meaning of the Act. We do not agree. In our opinion,
whether O.T.D. Corporation obtained its employees
through its own hiring or by contracting with a labor
contractor, such as Manpower, does not change the
fact that these employees are employees of O.T.D.
and constitute an identifiable employee complement
and their performance of the work indicates that they
claim the work in dispute.
We also reject Sheet Metal Workers contention that
it did not claim the work in question or seek to obtain
the work by proscribed means, Sheet Metal Workers
gave Goodyear half of a day to get the work assign-
ment changed and stated that it would not be cheated
out of the work again. Even before that time period
had expired, Sheet Metal Workers started picketing.
Although the sign indicated that the picketing was for
area standards , we find there is reasonable cause to
believe that an object of the picketing was to cause a
work stoppage at Goodyear in furtherance of its claim
to the work in dispute and indeed a partial work stop-
page did occur. We find reasonable cause to believe
that a jurisdictional dispute exists and the Sheet Metal
Workers Motion to Quash Notice of Hearing is ac-
cordingly denied.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to the relevant factors in-
volved.4 The following factors are relevant in making
a determination of the dispute before us.
1. Employer assignment
O.T.D. has assigned the work and prefers an assign-
ment of the work to its employees, including the em-
ployees it obtains from Manpower Incorporated. This
factor favors an assignment of the work to the O.T.D.
employees.
2. Skills required
The evidence shows that no special skills are re-
quired to assemble the containers. The containers
consist of two side members and two end members.
The sides and ends interlock and are connected by the
4 International Association of Machinists, Lodge No 1743, AFL-CIO (J A.
Jones Construction Company), 135 NLRB 1402
installation of roll-thread screws in each comer. The
screws are inserted by use of an airpowered tool which
rotates the screw into the metal. The work does not
require any special skill and can be performed by
either group of employees.
3. Efficiency of operations
The evidence in the record indicates that the O.T.D.
employees performed the work efficiently. The evi-
dence also indicates that the employees represented
by Sheet Metal Workers could perform the work with
equal efficiency.
4. Collective-bargaining agreement
Although the Sheet Metal Workers has a collective-
bargaining agreement with Goodyear covering main-
tenance sheet metal work, it has no agreement with
either O.T.D. or with Goodyear concerning construc-
tion sheet metal work. (Gates testified that the work
that O.T.D. is performing is construction work and is
not covered by the Sheet Metal Workers maintenance
contract, but rather by a construction contract.) As
there is no collective-bargaining agreement in effect
covering this work, we find that this factor favors
neither group of employees.
Conclusions
Having considered all the pertinent facts, we con-
clude that the employees of O.T.D. Corporation, in-
cluding those obtained through Manpower
Incorporated, are entitled to perform the work in dis-
pute. In reaching this conclusion , we rely on the
Employer's assignment and preference, the fact that
the O.T.D. employees possess sufficient skill to per-
form the work and can perform the work efficiently,
and the absence of factors which require a contrary
assignment. Accordingly, we conclude from the fore-
going that the O.T.D. Corporation's assignment of the
work to its employees, including employees obtained
from Manpower Incorporated, should not be dis-
turbed. Our present determination is limited to the
particular controversy which gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and on the basis of the
foregoing and the entire record in this proceeding, the
National Labor Relations Board hereby makes the
following Determination of Dispute:
1. Employees of O.T.D. Corporation , including
SHEET METAL WORKERS , LOCAL 54
employees obtained from Manpower Incorporated,
are entitled to perform the work of assembling alu-
minum box containers at The Goodyear Tire & Rub-
ber Company 's Houston chemical plant in Texas.
2. Sheet Metal Workers Local Union No. 54 is not
entitled by means proscribed by Section 8(b)(4)(D) of
the Act to force or require The Goodyear Tire &
Rubber Company, or O.T.D. Corporation, to assign
the work in dispute to employees represented by the
77
Sheet Metal Workers.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Sheet Metal Workers
Local Union No. 54 shall notify the Regional Director
for Region 23, in writing, whether or not it will refrain
from forcing or requiring The Goodyear Tire & Rub-
ber Company and O.T.D. Corporation to assign the
work in dispute in a manner inconsistent with this
determination.