Sheet Metal Workers Local Union 420

National Labor Relations Board - Board Decisions

Sep 6, 1972

198 N.L.R.B. 1207 (N.L.R.B. 1972)

SHEET METAL WORKERS LOCAL UNION 420 1207
Sheet Metal Workers International Association, Local
Union No. 420 , AFL-CIO ' and Rusco Building
Systems , a division of Rusco Industries , Inc.2 and
Orange County District Council of Carpenters,
affiliated with the United Brotherhood of Carpen-
ters & Joiners of America, AFL-CIO .3 Case
21-CD-299
September 6, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
construction and sale of buildings with an office
located in Beverly Hills, California. The work in
issue herein concerns the Huntington Beach project.
During the year immediately preceding the hear-
ing, Rusco sold and shipped goods and services
valued in excess of $100,000 directly to customers
located outside the State of California, and during a
like period, Urbanetics purchased goods and materi-
als valued in excess of $100,000 directly from
suppliers located outside the State of California.
Accordingly, we find that both Rusco and Urbanet-
ics are engaged in commerce within the meaning of
the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Rusco on July 2, 1971, alleging
that Sheet Metal Workers violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activity
with an object of forcing or requiring the assignment
of certain work described below to employees
represented by Sheet Metal Workers rather than to
employees represented by Carpenters. A hearing was
held before Hearing Officer Scott Forman on
February 16, 17, 22, and 23, 1972. 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 issues. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error
and are hereby affirmed. The Respondent, the
Employer, and the Carpenters filed briefs in support
of their positions and they have been duly consid-
ered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Rusco is a Delaware corporation with an office
located at Fullerton, California. It is engaged in the
manufacture and erection of residential structures. In
January 1970, Rusco contracted to manufacture and
install certain residential units at a housing project at
Huntington Beach, California, for Urbanetics Finan-
cial Corporation, a corporation engaged in the
i Hereinafter sometimes referred to as Sheet Metal Workers or
Respondent
2 Hereinafter sometimes referred to as Rusco or the Employer
During the course of the hearing , Rusco adduced testimony to the effect
that an agreement had been reached whereby Rusco was to be taken over in
its entirety by Inter-American Hotels, Inc Rusco urged that any decision
reached after the projected change in ownership, which was to have taken
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Sheet
Metal Workers and the Carpenters are labor organi-
zations within the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Rusco is engaged in the construction and erection
of houses and residential units. By early 1970 it had
developed a method of construction known as the
Rusco system, whereby self-supporting and self-
framing sections of housing units are constructed in
its plant at Fullerton, California, and shipped to field
housing sites for assembly or erection. The field work
consists merely of attaching the complete sections
together in proper order and location. The complete
sections manufactured at the Fullerton plant include
both the structural or load bearing subframe and the
skin or siding.
About the beginning of 1970, Rusco Industries,
Inc., formed Rusco Building Systems Division.
Harry Riegelman, a vice president and director of
the parent firm, has been in charge of Rusco
Building Systems Division since its inception . It also
appears that Riegelman is the developer of the Rusco
system of construction.
On January 16, 1970, Rusco Industries, Inc., and
Urbanetics entered into an agreement for construc-
tion of housing units at Huntington Beach, Califor-
nia, to be known as the "Family Affair" project. On
April 3, 1970, Rusco through Riegelman assigned the
disputed work described below to carpenters on all
building sites. On July 1, 1970, Rusco became
place on March 1, 1972, be directed at work assigned by the new corporate
entity Subsequent to the hearing, Rusco advised the Board that the sale had
been consummated on March 29, 1972. As the matter of the nature of the
transaction and the relationship between Rusco and Inter-American Hotels,
Inc , was not fully litigated , the record before us is insufficient to warrant
granting Rusco's request The request is denied
3 Hereinafter sometimes referred to as Carpenters
198 NLRB No. 173
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signatory to the Carpenters Master Labor Agreement
and to a Memorandum Agreement with Carpenters.4
Since July 1, 1970, Rusco has consistently assigned
the work of assembly or erection of housing units at
building sites to carpenters. The work at some 12
projects, including the "Family Affair" project,
involving about 40 houses and 350 apartment units
in Hawaii, Nevada, and California, have been thus
assigned.
Work on the "Family Affair" project did not begin
until about May 1971. Respondent's Business Repre-
sentative Prosser first observed carpenters engaged in
the disputed work at the "Family Affair" project in
May 1971. He contacted the Carpenters and was told
that the Carpenters would not give up the disputed
work. Peterson, Respondent's business manager,
subsequently contacted Riegelman and according to
Riegelman's testimony told him that the disputed
work belonged to Respondent Sheet Metal Workers
and that a picket line would be placed at the jobsite
if the work were not reassigned to Respondent's
members.
Pursuant to Peterson's orders, picketing at the
"Family Affair" jobsite began on June 30, 1971.
Approximately five pickets carried signs which read:
United Brotherhood of Carpenters and Joiners,
Urbanetics Financial Corporation, Gen'l. Con-
tractor All Unfair to Sheet Metal Workers Local
Union No. 420. Because of Failure to Comply
with National Joint Board Procedure for Settle-
ment of Jursidictional Disputes, Building Con-
struction Trades Council of Orange County,
AFL-CIO.
Respondent claims that the signs also included the
wording "Information to the Public." The Respon-
dent contends that the picketing was informational
in nature, was not designed to cover a work stoppage,
and in fact did not cause such a work stoppage.
However, Rusco's Operations tmanager Gallaway
testified that as a result of the picketing members of
other labor organizations ceased working.5 The
picket line was reinstated on July 7 and 8 and was
removed on the morning of July 9, 1971.
The Employer filed a charge on July 1, 1971, and
an amended charge on July 7, 1971, alleging that it
had assigned the disputed work described below to
members of Carpenters pursuant to contract, and
that on June 30, 1971, Respondent established a
picket line which effectuated work stoppages on the
project with a purpose of forcing or requiring the
Employer to assign the work to members of
Respondent rather than to members of Carpenters.
4 Rusco has also been in contractual relationship with Carpenters Local
530 for all production and maintenance work at its Fullerton, California,
plant for some time "
5 Gallaway also testified that he copied down the language of the picket
B. The Work in Dispute
The parties did not stipulate as to the work in
dispute. It is clear from the record, however, that the
work in dispute is the erection of prefabricated steel
panels utilized in home and residential unit construc-
tion at the "Family Affair" project at Huntington
Beach, California.
C. The Contentions of the Parties
The Respondent contends that jurisdiction should
not be asserted in this case in that there is no
reasonable cause to believe that a violation of
Section 8(b)(4)(D) occurred because its picketing was
informational in nature and not designed to effectu-
ate a work stoppage, and that moreover it has
disclaimed interest in the work in dispute. The
Respondent further contends that all parties agreed,
by contract or conduct, to submit this dispute to the
National Joint Board for the Settlement of Jurisdic-
tional Disputes,6 and that in fact an award was made
by that body in favor of Respondent. Finally, the
Respondent contends that if an affirmative award
should be made, that it be in favor of Sheet Metal
Workers on the basis of area and industry practice,
the training and skills of its members, and resulting
economy of operation.
The Carpenters contends that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
occurred, that the Employer, Rusco, is not bound to
submit the dispute to the Joint Board, and that an
affirmative award should be made in its favor on the
basis of the Employer's assignment, the collective-
bargaining contract between Rusco and Carpenters,
company and industry practice, its members' superi-
or skills involving the work in issue, the economy and
efficiency effected by utilization of carpenters, and
the loss of employment which would occur if
carpenters were taken off the work following an
award to Respondent's members.
The Employer also contends that a violation
occurred and that it is not bound to the procedures
of the Joint Board. It further contends that the
Carpenters is not bound to the procedures of the
Joint Board, that its assignment was properly made,
and that the Board should award the work in dispute
to members of the Carpenters in conformity with its
assignment. The Employer asserts that such an
award would be consistent with its contract with the
Carpenters, and is supported by the historical
practice of carpenters erecting houses by the efficien-
cy and economy resulting in utilizing carpenters to
signs during the picketing , and that they did not contain the wording
"Information to the Public "
F Hereinafter referred to as the Joint Board
SHEET METAL WORKERS LOCAL UNION 420 1209
perform the work, and by the fact that carpenters are
more readily available in the area than sheetmetal
workers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 the Employer assigned the
work in dispute to carpenters in 1970. Actual work
began about May 1, 1971, and Respondent contacted
the Carpenters seeking a voluntary relinquishment of
the work shortly thereafter. The Respondent then
submitted its claim to the work to the Joint Board,
and finally on June 30, 1971, began picketing the
jobsite. In these circumstances, we deem without
merit the Respondent's contention that the case is
not properly before us because its motivation in
picketing was merely informational,7 its picket signs
indicated its informational intent," and it disclaimed
interest in the disputed work at the hearing.9
As noted above, after seeking unsuccessfully to
induce the Carpenters to relinquish the disputed
work, the Respondent Sheet Metal Workers submit-
ted the dispute to the Joint Board, and on June 18,
1971, the Joint Board rendered an award in favor of
the Sheet Metal Workers. It is well settled, however,
and the parties all recognize, that in order for the
Joint Board's procedures to constitute an agreed-
upon method for resolving the dispute such as would
cause this Board to relinquish jurisdiction, all parties
including the Employer must be bound to abide by
the procedures of the Joint Board.10 The only
evidence in the record which might conceivably serve
as a basis for finding Rusco contractually bound to
the procedures of the Joint Board is the fact that it
entered into a Master Labor Agreement with the
Carpenters on July 1, 1970. However, at the same
time, Rusco and the Carpenters also entered into a
Memorandum Agreement in which they specifically
excluded themselves from the coverage of the Joint
Board. In these circumstances, it is clear that Rusco
is not contractually bound to the Joint Board.
7 Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No 631,
international Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (Reynolds Electrical and Engineering Co„ Inc), 157 NLRB 1621
8 Local 25, International Brotherhood of Electrical Workers, AFL-CIO
(Sorrow-Suburban Electric Co, Inc), 157 NLRB 715
9 Local 157, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (Midwest Homes, Inc), 160 NLRB 261, Local 1291 , International
Longshoremen's Association (Pocahontas Steamship Company), 152 NLRB
676, and 154 NLRB 1785
10 Plasterers Local Union No 79, Operative Plasterers and Cement Masons
International Association of Houston, Texas (Southwestern Construction
Company), 167 NLRB 185, 187
11 Electrical Workers Local 26, International Brotherhood of Electrical
The Respondent contends, nevertheless, that Rus-
co is bound to abide by the Joint Board's award by
its course of conduct involving cooperation with that
body's investigation of the dispute. When the
Respondent submitted this dispute, the Joint Board
as part of its investigation wrote to Rusco and
requested information concerning the Employer's
operation and the nature of the work involved. On
behalf of Rusco, Riegelman replied with detailed
information concerning the Rusco system. Neither
Rusco nor Riegelman in any way further cooperated
with the Joint Board or abided by its decision.
The Board has held that an employer not contrac-
tually bound to the processes of the Joint Board may
nonetheless be so bound by its course of conduct.ii
But those cases have involved far more evidence of
intent to submit to the Joint Board than is here
present, such as compliance with the Joint Board
decision,12 submission of the dispute to the Joint
Board,13 or otherwise affirmatively seeking aid from
that body in resolving the dispute.14 It is well settled
that the minimal degree of cooperation Rusco
afforded the Joint Board in this case is not sufficient
to establish that the Employer agreed to submit to
the Joint Board.15 We so find here.16
Accordingly, on the basis of the entire record, we
find there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
the dispute is properly before the Board for determi-
nation.
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 all relevant factors.
In International Association of Machinists, Lodge No.
1743 (J. A. Jones Construction Company), 17 the
Board set forth the criteria to be considered in the
making of an affirmative award in a Section 10(k)
proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in
dispute, e.g., the skills and work involved,
certifications by the Board, company and indus-
Workers, AFL-CIO (McCloskey & Ca), 147 NLRB 1498. 1503
12 Id
13 Wood Wire & Metal Lathers' International Union, Local 46, AFL-CIO
(Jacobson & Co, Inc), 119 NLRB 1658, 1662
14 Local Union No 9, Wood, Wire, and Metal Lathers International Union,
AFL (A W Lee, Inc), 113 NLRB 947,953
15 Local 450, International Union of Operating Engineers, A FL-CIO (Shne
Industrial Painters ), 119 NLRB 1725, 1732, Local 173, Wood, Wire and
Metal Lathers ' International Union, AFL-CIO (Newark & Essex Plastering
Co), 121 NLRB 1094, 1104
16 In view of our finding in this regard, we need not pass on whether or
not, in the facts of this case , Carpenters is bound to the Joint Board
17 135 NLRB 1402
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
try practice, agreements between unions and
between employers and unions, awards of arbitra-
tors, joint boards, and the AFL-CIO in the same
or related cases, the assignment made by the
employer, and the efficient operation of the
employer's business.18
1. Certification by the Board and arbitrators,
other awards, and contracts
Neither labor organization has been certified as the
bargaining representative of employees of the Em-
ployer. There are no relevant arbitration awards. As
noted above, there is no agreement by all of the
parties to submit the dispute to the Joint Board.
As described more fully above, the Employer is in
contractual relationship with the Carpenters covering
employees at its Fullerton, California, plant. Since
July 1, 1970, Rusco and the Carpenters have been
parties to a Master Labor Agreement and a Memo-
randum Agreement, under the terms of which Rusco
has assigned the work in dispute to members of the
Carpenters at the "Family Affair" project and a
number of similar projects, and the Carpenters has
represented the employees at all of those projects
consistently.
2. The Employer's assignment and the
Employer's preferences
The Employer has assigned the work in dispute to
members of the Carpenters, and it is abundantly
clear that the Employer wishes to continue that
assignment.
3. Industry practice, area practice, and the
Employer's practice
There is extensive evidence in the record to the
effect that other employers both in the area of
Rusco's operation and elsewhere around the nation
erect basically metal buildings utilizing sheetmetal
workers and ironworkers, depending on the gauge of
metal involved. It also appears that in some in-
stances, perhaps because only lighter gauge metal is
being used, some jobs involved sheetmetal workers
exclusive of ironworkers.
Both the Employer and the Carpenters rebut that
evidence contending that the buildings erected by
members of Respondent are, for the most part at
least, nonresidential in nature. It is not altogether
clear from the record how significant that distinction
might be. The Employer also contends that the
unique nature of the Rusco system so profoundly
affects the work in dispute-essentially by simplify-
ing it-that the practice propounded by the Respon-
dent is of little or no bearing. Finally, the Carpenters
and the Employer adduced evidence of a number of
metal residence construction projects being erected
by other employers utilizing carpenters. Thus the
pattern of assignment in the industry and in the area
does not provide a clear basis for favoring award to
members of either labor organization. The Employ-
er's own practice, as stated above, is of course one of
consistent assignment to carpenters.
4. Skills and work involved
There is a great deal of evidence in the record
concerning the Respondent's 4-year apprenticeship
program and the skills possessed by a journeyman
sheetmetal worker. However, other uncontradicted
evidence in the record amply establishes the simplici-
ty of the work in dispute and the lack of skills, such
as those possessed by the sheetmetal workers,
necessary to perform that work. Thus, it is clear that
the work consists of joining prefabricated and
complete sections of a housing unit. The only
"special skill" required, so far as the record shows, is
the ability to utilize a plumb and line in order to
square original members of a structure. Yet, the
record shows that when the Employer requires
carpenters it does not seek men proficient with a
plumb and line, but simply asks for carpenters.
Indeed, Robert Miller, a Carpenters representative,
testified without contradiction that a journeyman
carpenter could begin joining the sections and
assembling a building using the Rusco system within
5 minutes after going on the job. It does not appear
therefore that the skills and training of either
sheetmetal workers or carpenters provide them with
any particular advantage in the performance of the
disputed work.
5. Efficiency and economy of the Employer's
operations
It is clear from the record that carpenters are able
to perform the entire work of erecting residential
units using the Rusco system, and in fact they have
done so. Respondent, on the other hand, would
perform only the work involving metal, leaving that
portion involving work with wood to carpenters and,
indeed, that work involving heavier gauge metals to
ironworkers. If the work were awarded to sheetmetal
workers represented by Respondent, the Employer
would be required to maintain costly and less
efficient composite crews. It is clear therefore that
the efficiency and economy of the Employer's
operation favors the assignment of the disputed work
Is Id at 1410-1411
SHEET METAL WORKERS LOCAL UNION 420
to carpenters, who, moreover, are paid less per hour
than sheetmetal workers.
CONCLUSION
Based upon the entire record, and after full
consideration of all the relevant factors, we conclude
that the employees represented by the Carpenters are
entitled to the work in dispute. Our present determi-
nation is limited to the particular dispute involved
herein . In making the determination , we are assign-
ing the disputed work to employees who are
represented by the Carpenters and not to the
Carpenters or its members.
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 case,
the National Labor Relations Board makes the
following Determination of Dispute:
Employees employed by Rusco Building Systems, a
Division of Rusco Industries, Inc., and who are
represented by Orange County District Council of
Carpenters, affiliated with The United Brotherhood
1211
of Carpenters and Joiners of America, AFL-CIO,
are entitled to perform the erection of prefabricated
steel panels utilized in home and housing unit
construction at the "Family Affair" project at
Huntington Beach, California.
Sheet Metal Workers International Association,
Local Union No. 420, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require the Employer to assign the disputed
work as described above to individuals represented
by Local 420.
Within 10 days from the date of this Decision and
Determination of Dispute, Sheet Metal Workers
International Association, Local Union No. 420,
AFL-CIO, shall notify the Regional Director for
Region 21 , in writing, whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the work in dispute to individuals represented by
Local 420 rather than to employees employed by the
Employer who are represented by Orange County
District Council of Carpenters, affiliated with The
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO.