Sheet Metal Workers, Local 416

National Labor Relations Board - Board Decisions

Mar 15, 1977

228 N.L.R.B. 719 (N.L.R.B. 1977)

SHEET METAL WORKERS, LOCAL 416 719
Sheet Metal Workers International Association, Local
No. 416, AFL-CIO; United Brotherhood of
Carpenters and Joiners of America , Local Union
No. 836, AFL-CIO; International Association of
Bridge, Structural and Ornamental Iron Workers,
Local Union No. 498, AFL-CIO ' and Hough
Manufacturing, Inc. and United Furniture Workers
of America Local 801 , AFL-CIO. Case 30-CD-71
March 15, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, PENELLO, AND
WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing a charge filed by Hough Manufacturing, Inc.,
herein called Hough or the Employer , alleging that
the Sheet Metal Workers International Association,
Local No. 416, AFL-CIO, herein called the Sheet
Metal Workers ; United Brotherhood of Carpenters
and Joiners of America , Local Union No . 836, AFL-
CIO, herein called the Carpenters ; and International
Association of Bridge , Structural and Ornamental
Iron Workers , Local Union No. 498 , AFL-CIO,
herein called the Iron Workers , herein collectively
called the Respondents , had violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign certain work to its
members rather than to employees represented by
United Furniture Workers of America Local 801,
AFL-CIO, herein called the Furniture Workers.
Pursuant to notice , a hearing was held before
Hearing Officer George Strick on October 20, 1976.
All parties were afforded full opportunity to be
heard , to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues . Thereafter,
the Employer filed a brief which has been duly
considered.
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.
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 proceeding, the
Board makes the following findings:
1 The names of the parties herein are set forth as amended at the hearing
to reflect their correct designations
228 NLRB No. 83
I. THE BUSINESS OF THE EMPLOYER
The parties2 stipulated, and we find, that the
Employer, a Connecticut corporation with its princi-
pal place of business in Janesville, Wisconsin, is
engaged in the manufacture of movable door
partitions. During the past year, the Employer sold
goods and materials to customers outside the State
having a value of $50,000. The parties also stipulated,
and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act, and it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the Sheet
Metal Workers , the Carpenters, the Iron Workers,
and the Furniture Workers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The parties stipulated to incorporate and make a
part of the record herein the transcript and exhibits
in the 10(1) proceeding before the United States
bistrict Court for the Eastern District of Wisconsin
which involved the same issues and parties.
The dispute arose out of the construction of a large
addition to Hough's-Janesville manufacturing plant.
The outside structural work was being performed by
contractors and subcontractors whose employees are
members of various building trades unions. The
inside work, including the disassembling and clean-
ing of paint booths, the assembling of support
structures for paint ovens (including the installation
of panels., the assembling of support structures for
an overhead track system, and the installation of
machines and equipment (including leveling and
bolting), was being done by Hough's own employees.
Hough's Janesville factory workers are represented
by the Furniture Workers. Ten of the factory
employees had been newly hired and were not union
members; however, the contract between the Furni-
ture Workers and the Employer provides that
employees must become union members at the
expiration of the 45-day probationary period.
On September 13, 1976, Hough factory employees
began putting up paint ovens in the new addition.
The next day, Billy Juno, the business agent of the
Sheet Metal Workers, approached Jim Zopolos, the
vice president of Hough, and inquired about the
work being done in the addition. Juno asserted that
2 The Furniture Workers did not enter an appearance at the hearing and
hence is not a party to the stipulations herein.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of the work was sheet metal work and that
Hough was taking work away from his people.
Zopolos said that Hough could not afford the Sheet
Metal Workers , and that Hough 's own employees
would do the work.
In a telephone conversation on September 15, Juno
again made a claim to Zopolos that Hough employ-
ees were doing his Union's work. Juno suggested that
Zopolos contact Kepp Plumbing to try to work out a
compromise . Zopolos then asked about putting 1
sheet metal worker on the job for each 10 Hough
employees . Juno replied that this would not be
enough . Zopolos then contacted Kepp and was told
that Juno wanted 50 percent of the workers on the
jobsite to be members of the Sheet Metal Workers.
Zopolos rejected the proposal and told Kepp that the
Hough employees had been pulled out of the new
wing at noon that day and therefore there should be
no further trouble.
Juno again telephoned Zopolos on Friday, Septem-
ber 17 . According to Zopolos, Juno stated that a
picket line would go up on the following Monday to
protest the fact that work was going on in the
building that should be done by his Union , and that
he had reason to believe that other trades would
honor the picket line . Juno admits to notifying
Zopolos of the Sheet Metal Workers intention to
picket . However, he claims to have stated that the
purposes of the picketing were to inform other
construction workers that the people doing sheet
metal work were not members of the building trades
unions and to compel Hough to pay Sheet Metal
Workers wages to its employees who were perform-
ing sheet metal work . Juno further claims that since
September 17 he has abandoned the attempt to
persuade Hough to allocate the sheet metal work to
members of his Union.
Later that same day , Zopolos spoke to George
Chabucos of the Iron Workers . Chabucos suggested
that the picketing might be avoided if Hough
employees did not work in the new addition until
after the building had been enclosed and turned over
to Hough . Zopolos replied that the Hough employees
already had been pulled out of the new section.
Picketing did not begin on Monday , September 20,
as had been threatened . The next week , however,
Hough employees resumed work in the new section
of the plant . On September 28, the Respondents
began picketing the Hough plant. The Iron Workers
picket signs contained the following language:
"Hough Mfg . is working the job with labor receiving
less than prevailing Iron Workers Local Union 498
AFL-CIO rates this sign is not directed at the
employees ' of this Co. or the employees of any other
employer serving this job but solely at the public."
The wording for the Carpenters and Sheet Metal
Workers was identical, with the exception that the
name of the respective Union was inserted in place of
the Iron Workers. Some employees of Hough and of
contractors and subcontractors honored the picket
line. The picketing continued until the district court
issued the 10(1) injunction on October 19.
B. The Work in Dispute
The work in dispute involves the installation of
various production equipment and structures in the
new addition to the Janesville plant.
C. The Contentions of the Parties
The Respondents contend that the record does not
reveal a present jurisdictional dispute cognizable
under Section 10(k) of the Act and that, therefore,
the notice of hearing should be quashed. The
Respondents take the position that, although the
Sheet Metal Workers did claim some of the work in
dispute up until September 17, the Sheet Metal
Workers has not claimed the work thereafter and
does not presently claim it and that the Carpenters
and Iron Workers have never claimed, and do not
presently claim, the work. The Respondents further
claim that the picketing was for the purpose of
maintaining their wage standards and not for a
purpose proscribed by Section 8(b)(4)(D).3
The Employer takes the position that the dispute is
properly before the Board for determination under
Section 10(k) of the Act and that the record
establishes reasonable cause to believe that Respon-
dents have engaged in conduct violative of Section
8(b)(4)(D) of the Act. The Employer further con-
tends that the work in issue properly was assigned to
its own employees represented by the Furniture
Workers.
The Furniture Workers did not appear at the 10(1)
injunction proceeding or the 10(k) hearing and has
not entered an appearance before the Board.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 Respondents deny that their picketing of
Hough was for purposes violative of Section
8(b)(4)(D) and contend that the object of their
picketing was the protection of their wage rates.
While there is evidence supporting the assertion that
3 The Sheet Metal Workers additionally claims that a purpose of the
picketing was to obtain recognition as the representative of the Hough
employees doing sheet metal work.
SHEET METAL WORKERS, LOCAL 416
a purpose of the picketing was the preservation of
their wage standards, the Board must still consider
whether an object of the picketing-among possible
multiple objects sought by the Respondent-was to
force or require Hough to reassign the work from its
own employees, represented by the Furniture Work-
ers, to members of the Respondent Unions.
The evidence establishes that Billy Juno of the
Sheet Metal Workers claimed the work in dispute in
conversations with Zopolos on September 14, 15, and
17, and threatened to picket to protest the fact that
Hough employees were doing his Union's work.
There is further evidence that the business agents of
the Respondent Unions claimed the disputed work at
a meeting on September 28 with representatives of
the Furniture Workers, and that Chabucos told one
of the building contractors on September 30 that the
picketing was occurring because work was being
done that "belonged to Iron Workers." Moreover,
Juno's own affidavit states that: "Prior to September
17, 1976, I attempted to persuade Hough to allocate
that work to other workers represented by Local 416.
When Hough refused, I decided to do the second
best thing and so informed Hough. I told them we
would picket to inform other construction workers
that the people doing sheet metal work were not
members of construction unions."
On this same record the United States district court
found reasonable cause to believe that an object of
the picketing was to force the assignment of the
disputed work from Hough's own employees to
members of the Respondent Unions. We agree, and,
accordingly, we find that there is reasonable cause to
believe that the Respondents engaged in conduct
violative of Section 8(b)(4)(D) and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.4
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors .5 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.6
The following factors are relevant in making the
determination of the dispute before us:
4 In view of the above, we hereby deny the Respondents ' motion to
quash.
5 N.L.R B v Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
721
1. Company practice
The record clearly establishes that it has been the
longstanding practice of Hough to assign the work in
question to its factory employees.
2. Skills, economy, and efficiency of
operation
The record indicates that the Hough employees
possess the necessary skills to perform the disputed
work and that Hough is satisfied with their perfor-
mance. Moreover, Hough strongly favors an award
of the work to its own employees for reasons of
efficiency, economy, and continuity of its work force.
Conclusion
Upon the record as a whole, and after full
consideration of all relevent factors involved, we
conclude that employees who are represented by the
Furniture Workers are entitled to perform the work
in dispute. We reach this conclusion relying on
company practice and skills, economy, and efficiency
of operation. In making this determination, we are
awarding the work in question to employees who are
represented by the Furniture Workers, but not to
that Union or its members. The present determina-
tion is limited to the particular controversy which
gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of th National Labor
Relations Act, as amended, and up n the basis of the
foregoing findings and the entire record in this
proceeding, the National LaborlI Relations Board
makes the following Determination of Dispute:
1. Employees of Hough Manufacturing, Inc., who
are represented by United Furniture Workers of
America Local 801, AFL-CIO, are entitled to
perform the installation of various production
equipment and structures in the new addition to the
Janesville plant.
2. Sheet Metal Workers International Associa-
tion, Local No. 416, AFL-CIO; United Brotherhood
of Carpenters and Joiners of America, Local Union
No. 836, AFL-CIO; International Association of
Bridge, Structural and Ornamental Iron Workers,
Local Union No. 498, AFL-CIO, are not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require Hough Manufacturing, Inc., to
assign the disputed work to employees represented
by those labor organizations.
6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A Jones Construction Company), 135 NLRB 1402 (1962).
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers
International Association , Local No. 416, AFL-CIO;
United Brotherhood of Carpenters and Joiners of
America, Local Union No. 836, AFL-CIO; Interna-
tional Association of Bridge, Structural and Orna-
mental Iron Workers, Local Union No. 498, AFL-
CIO, shall notify the Regional Director for Region
30, in writing, whether or not they will refrain from
forcing or requiring the Employer, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
disputed work in a manner consistent with the above
determination.