Carpenters Dist. Council of Houston

National Labor Relations Board - Board Decisions

Jun 5, 1967

165 N.L.R.B. 177 (N.L.R.B. 1967)

CARPENTERS DIST. COUNCIL OF HOUSTON
Carpenters District Council of Houston and
Vicinity, and Millwrights Local Union No.
2232 and Continental Can Company and
United Steelworkers of America, AFL-CIO.
Case 23-CD-134
June 5, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
charges filed by Continental Can Company , herein
referred to as the Employer , alleging, in substance,
that Carpenters District Council of Houston and
Vicinity , and Millwrights Local Union No. 2232,
herein referred to respectively as the Council and
Local 2232 and collectively as the Respondents,
violated Section 8(b)(4)(i ) and (ii )(D) of the Act by
engaging in conduct to force or require the Employer
to assign certain disputed work to employees
represented by Local 2232, and not to its own
employees represented by United Steelworkers of
America , AFL-CIO, herein called Steelworkers.
Pursuant to notice , a hearing was held before
Hearing Officer Richard J. Linton on April 4, 1967.
Employer and Steelworkers appeared at the hearing
and were afforded a 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. A
brief filed by the Employer 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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case , the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a New York corporation engaged
in the business of selling metal containers. It
maintains an office and plants in Houston, Texas, as
well as in other States of the United States. During
the past 12 months, the Employer has purchased
goods, materials, and equipment valued in excess of
$50,000, which goods, materials, and equipment
were shipped from points outside the State of Texas
to the Employer at Houston, Texas. Accordingly, we
find that the Employer is engaged in commerce
' Although the Council and Local 2232 were duly notified of the
hearing neither appeared at the hearing and neither filed a brief
2 See, for example, Millwrights' Local 2232, Carpenters
177
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
Testimony was adduced at the hearing which
shows that Steelworkers is a labor organization
within the meaning of the Act. Although neither the
Council nor Local 2232 appeared at the hearing, we
have previously found these organizations to be
labor organizations within the meaning of Section
2(5) of the Act.2 Accordingly, we find that the
Council, Local 2232, and Steelworkers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work in Issue
The work in dispute, as shown by the record, is
the installing of various tooling, such as dies and
punches, at the Employer's Plant 440, Houston,
Texas, and the precision tuning of production
machinery so that it operates properly and is
precisely synchronized with the other operations on
the production line.
B. Background
The Employer manufactures and sells metal
containers to breweries and other customers. It has
a contract in the Houston, Texas, area to sell 50
million seamless cans annually to the Anheuser-
Busch brewery, with deliveries commencing in June
1967. To fulfill this contract, Employer is
constructing its Plant 440, located at 8501 East
Freeway, Houston, Texas, and has subcontracted
the installation of the production machinery to PMI
Corporation, herein called PMI. PMI utilizes the
services of millwrights pursuant to a national
contract, and in the Houston area uses members of
Local 2232. The installation work subcontracted to
PMI included setting, leveling, and cleaning the
basic machinery, but did not include tooling or
tuning the machines after they were installed.
Tooling involves inserting certain punches, chucks,
gears, and similar items into the interior of the
machines, and tuning is an intricate operation which
involves synchronization of the operational parts of
the individual machines and of all machines on a
particular production line to each other in order that
the production line will operate as an integrated
system geared to a production rate of 200 cans per
minute.
When the first machine, a National Impact
Extrusion press, reached the tooling stage in early
(Farnsworth & Chambers), 122 NLRB 300, enfd as modified 277
F.2d 217 (C.A. 5, 1960), cert. denied 366 U.S. 908
165 NLRB No. 20
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 1967, Kenneth Banks, business agent for
Local 2232, claimed that members of Local 2232 had
the right to perform the tooling and tuning up of the
machine to the point of production. The Employer
rejected this claim of Local 2232, and asserted that
this work was to be assigned to its own employees
who were represented by the Steelworkers. On
February 10, 1967, Robert Newell, PMI vice
president; Charlie Sossamon, PMI job superintend-
ent; J. E. Perry, project coordinator for the Employer;
James Mayer, resident construction supervisor for
the Employer; and Henry O'Shaughnessy, manager
of Plant 440, met with Banks to discuss Local 2232's
claim to the tooling and tuning-up work. Newell
advised Banks that the PMI contract with the
Millwrights did not include tooling and tuning of the
machinery, that PMI had no contract with the
Employer to perform such work, and that PMI was
not interested in such contract. O'Shaughnessy
informed Banks that this work was covered by the
Employer's contract with the Steelworkers and that
the Employer had conducted an extensive training
program at great expense in preparing its employees
to perform such work. Banks then stated "Well, I
know what I will have to do" and left the meeting.
The following Monday, February 13, 1967, the
Employer determined that one of the extrusion
presses was ready for tooling and assigned it to its
maintainers for tooling and tuning. A short while
later Banks asked O'Shaughnessy to meet with him
again . O'Shaughnessy agreed and Banks, in
company with the business agents for the
electricians and pipefitters unions, met with
O'Shaughnessy and Mayer. Banks again laid claim
to the disputed work for Local 2232. Alternatively,
he proposed that the Employer, in the performance
of the disputed work, limit its employees to two per
machine or that the Employer assign one millwright
to each of the Employer's employees working on the
disputed work. The Employer rejected Banks' claim
and his alternative proposals. Banks then stated that
it would be difficult to have the Employer's
employees working next to the equipment the
millwrights were installing . At that point the meeting
recessed. When it reconvened later that morning,
Council Representative Jack O. Fountain, who
accompanied Banks, asserted Local 2232's right to
the work. The Employer again rejected the claim
and told Fountain that its own employees would do
the work. According to O'Shaughnessy, Fountain
then said "I 'know what I will have to do" and,
accompanied by the other union representatives, left
the meeting. Later that morning, about 11:30 a.m., a
picket appeared near the boundary of Employer's
Plant 440 carrying a sign which read:
' The only mention of the wage rate paid to the Employer's
employees was a casual comment by Banks that it would be
difficult for him to have the Employer's employees working on a
piece of equipment next to equipment that apparently higher paid
Carpenters District Council protests the
Payment of Substandard Wages by Continental
Can.
After the picket appeared, some 75 employees,
who were members of various craft unions and
employed by subcontractors then engaged in various
phases of the construction project, ceased working.
These employees returned to work the following day
when the picket was removed.
C. Contentions of the Parties
Employer and Steelworkers contend that a
jurisdictional dispute exists and that the Employer's
assignment of the work to its employees is
determinative . In the alternative , they contend that
the disputed work should be assigned to the
Employer 's employees who are represented by the
Steelworkers , based on the collective -bargaining
agreement , company and industry practice , skills
and training involved , and economy of operation. As
indicated , neither the Council nor Local 2232
appeared at the hearing, and neither, filed any
pleading at or prior to the hearing.
D. Applicability of the Statute
In accordance with the requirements of Section
10(k) of the Act, the Board must first ascertain
whether there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) of the Act has
occurred.
The record shows that on February 13, 1967, the
Respondents met with the Employer's representa-
tives for the purpose of discussing their claim to the
disputed work. Upon the Employer's rejection of
their claim, both Banks and Fountain stated that in
such circumstance "they knew what to do," and that
later the same day the Respondents caused the
Employer's Plant 440 to be picketed. Although the
picket sign purportedly protested substandard
wages paid by the Employer, there is no basis for
concluding that the sole or even an object of the
picketing was to protest the Employer's alleged
substandard wages. At no time were the wages paid
by the Employer a subject of serious discussion.3 On
the contrary, the record is clear that Respondents'
insistence on the Employer assigning the particular
work to millwrights showed a concern not with
obtaining higher wages for the members of the
Steelworkers, but with securing for Local 2232
members the disputed work which was claimed by
and being performed by the Employer's employees
represented by the Steelworkers. Accordingly, we
find that there is reasonable cause to believe that
Respondents Council and Local 2232 violated
millwrights were installing In any event , the work being done by
millwrights was different from the tooling and tuning up
performed by Employer's employees, and therefore provided no
basis of comparison
CARPENTERS DIST. COUNCIL OF HOUSTON
Section 8(b)(4)(D) of the Act 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 disputed work after
giving due consideration to all relevant factors. The
following factors are asserted in support of the
Employer's and Steelworkers' claims.
1. Collective-bargaining contract
The Employer claims that its current contract
with Steelworkers covers the work in question. The
contract, a multiplant agreement effective
October 1, 1964, and terminating January 31, 1968,
recognizes the Steelworkers as the exclusive
collective-bargaining agent for all employees in its
bargaining unit at Plant 440. Article I of appendix E,
dealing with training programs, in section 1(c),
provides that the Employer will train employees for
trade or craft or skilled jobs wherever, in its opinion,
it is practical to do so or a need exists for such
training. It was pursuant to such provision that the
Employer undertook to train its equipment
maintainers at Plant 440 when the need arose, and it
is also established that at another of its plants where
the same machinery is installed, the work of tooling
and tuning the machinery was assigned to its own
employees.
On the other hand, the evidence is also clear that
PMI had no contractual obligation to the
Respondents to assign such work to its millwrights.
Moreover, PMI's contract with the Employer did not
contain any provision for tooling or tuning the
machinery after installation by PMI's employees. In
the circumstances, we conclude that the Employer's
employees represented by the Steelworkers have a
strong contractual claim to the particular work.
2. Employer and industry practice
The Employer's practice in its other plants has
always been to assign the work of tooling and tuning
up machinery to its own employees, and it has never
assigned this work to any other workers.
Furthermore, there is undisputed testimony in the
record that American Can Company, National Can
Company, The Crown Company, and Reynolds
Aluminum Company also assign similar work to
their own employees and not to millwrights. It is
clear, therefore, that Employer and industry practice
favor awarding the work to the Employer's
employees represented by the Steelworkers.
3. Skill, efficiency, and economy factors
The Employer adduced evidence to show that the
work of tooling and tuning its seamless container
179
manufacturing machinery requires a high degree of
skill. The Employer selected skilled workmen from
its employees and sent them through an intensive
training program for 5 months, at a cost of
approximately $100,000, before it considered them
qualified as maintainers to perform this work on
machinery valued at about $2 million. The
machinery involved comprises three complete
production lines at Plant 440. Each line, when
complete, will contain two impact extrusion presses,
two wall ironing machines, four panel trim flange
machines, one tester, one coater, one printer, two
pin ovens, one inside bake oven, five spray
machines, and one palletizer. After installation of
the machinery, the maintainers install various
tooling, such as dies and punches, and then tune this
machinery so that each operates properly and is
precisely synchronized with all other operations on
the line. Jim Mayer, Employer's resident
construction superintendent, testified that in
installing the tooling the maintainers work to
tolerances of .0002 of an inch, and if the tooling is not
properly installed it would be smashed and the
machine ruined. There is no evidence in the record
that millwrights have ever performed the tooling and
tuning up work on this type of machinery or to show
that they possess the requisite skills to perform such
work. Furthermore, if the Employer were to comply
with Respondents' demand for the disputed work,
the Employer would be required to replace its
maintainers, whom it has trained at great expense,
and use millwrights whose ability to perform this
work is very much in question. On the record as a
whole, we find that the factors of skill, efficiency,
and economy of operation favor the Employer's
practice of assigning the work to its employees.
Conclusions as to Merits of the Dispute
It appears from the foregoing that all of the
relevant factors favor the Employer's assignment of
the disputed work to its employees. Accordingly, we
shall award the work to the Employer's employees
represented by the Steelworkers. In making this
determination, we are awarding the work to the
employees of the Employer who are currently
represented by Steelworkers, but not to that Union
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
proceeding , the National Labor Relations Board
makes the following determination of dispute.
1. Employees employed as maintainers by
Continental Can Company , currently represented by
United Steelworkers of America , AFL-CIO, are
entitled to perform the work of tooling and tuning
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production machinery installed in the Employer's
Plant 440, Houston , Texas.
2. Carpenters District Council of Houston and
Vicinity and Millwrights Local Union No. 2232 are
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Continental
Can Company to assign the above work to members
of, or employees represented by, Millwrights Local
Union No. 2232.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Carpenters District
Council of Houston and Vicinity and Millwrights
Local Union No. 2232 shall notify the Regional
Director for Region 23, in writing, whether they 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 the members of Local
2232 rather than to the Employer's own employees
currently represented by United Steelworkers of
America, AFL-CIO.