Sheet Metal Workers Int9;l Assn., Local 272, Etc.

National Labor Relations Board - Board Decisions

Apr 25, 1962

136 N.L.R.B. 1402 (N.L.R.B. 1962)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association , Local Union
No. 272; Sheet Metal Workers International Association, AFL-
CIO and Valley Sheet Metal Company. Case No. 20-CD-70.
April 25, 1962
DECISION AND ORDER QUASHING NOTICE OF HEARING
This proceeding arises under Section 10(k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph(4) (D) of
section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen...."
On October 20, 1960, Valley Sheet Metal Company, herein called
Valley Sheet or the Employer, filed with the Regional Director for
the Twentieth Region a charge alleging in substance that on or about
October 18, 1960, Sheet Metal Workers International Association,
Local Union No. 272, and Sheet Metal Workers International Asso-
ciation, AFL-CIO, herein respectively called Local 272 and the Inter-
national, had induced and encouraged individual employees of Valley
Sheet Metal Company to engage in a refusal to work with an object of
forcing or requiring the Employer to assign certain work to members
of Local 272 rather than to Employer's employees who were members
of Sheet Metal Workers Local 104, herein called Local 104.
Thereafter, pursuant to Section 10(k) of the Act and Sections 102.89
and 102.90 of the Board's Rules and Regulations, Series 8, the Re-
gional Director investigated the charges and provided for an appro-
priate hearing upon due notice to all parties. The hearing was held
before Robert M. Yeates, hearing officer, on December ^7 and 8, 1960,
at San Francisco, California. All parties who appeared at the hear-
ing 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 Employer and the
International have filed briefs which have been duly considered by
the Board.
Upon the entire record in this case, the Board makes the following :
FINDINGS OF FACT
1. The Employer is engaged in commerce within the meaning of
the Act.
2. Locals Nos. 272 and 104, and the International Association are
labor organizations within the meaning of the Act.
3. The dispute :
136 NLRB No. 136.
SHEET METAL WORKERS INT'L ASSN., LOCAL 272, ETC. 1403
A. The facts
Valley Sheet has its principal place of business in San Francisco
County, California, where it employs about 35 sheet metal journeymen,
all represented by Local 104 of the International. Valley Sheet is a
member of the Sheet Metal Association of San Francisco, and through
that association is party to a multiemployer collective-bargaining
agreement with Local 104.
On October 18, 1960, Valley Sheet dispatched three of its employees
to install roof gutters and drainpipe at a new warehouse under con-
struction for Folger Coffee Company by Utah Construction Company
in San Mateo County, California. Valley Sheet was the subcontractor
under Utah. The three employees dispatched were members of Local
104 and were covered by the San Francisco multiemployer bargaining
contract.
At this time the International's constitution, binding on all affiliated
locals and members, contained the following amendment :
In the event qualified members are available in the jurisdiction
of the local union in which the work is to be performed not more
than two (2) members per job shall, at the request of the employer,
leave the jurisdiction of the local union where the shop of the
Employer is located and enter the jurisdiction of the local union
in which the work is to be performed for the purpose of perform-
ing such work.
This amendment was known as the "two-man rule" and the members
of both locals were familiar with it.
When the three San Francisco journeymen reached the jobsite in
San Mateo County, one of them, Cambou, called the business repre-
sentative of Local 272, Irvin Ellenberger, and advised him that three
employees had been sent by Valley Sheet to the Folger job. About
10 a.m., Ellenberger appeared at the jobsite and asked the three em-
ployees to sign a document in which they acknowledged existence of
the two-man rule in the International constitution and the fact they
could be disciplined for any infraction. They signed, and Ellenberger
then told them that if all three continued to work at Folger charges
might be brought against them. One of them left the job and returned
to San Francisco.
Later that day, Ellenberger discussed the situation by telephone
with Vice President Charles Andrews of Valley Sheet Company.
Ellenberger explained the two-man rule to Andrews, said he intended
to live up to it, and added that Valley Sheet could continue indefinitely
and complete the Folger job with two San Francisco men. He said
Andrews could have additional journeymen from San Mateo if he
wished. Andrews told Ellenberger he could not operate the Folger
job with only two men, and then agreed-"under protest"-to hire
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men from Local 272 until the matter could be straightened out. Ellen-
berger sent Andrews one man on the 18th (all he had available) and
on October 24 he sent him two men. From the testimony of Andrews
it appears that the Folger job was completed by using Local 272 men
whenever more than two men were needed on the job. It also appears
that not more than four men were required at any one time.
Valley Sheet filed the charge herein on October 20, 1960.
B. The contentions of the parties
In support of its charge, the Employer contends that the Respondent
Local 272 exerted illegal pressure to compel it to replace journeymen
members of Local 104 with members of Local 272. It also argues that
the two-man rule provision in the constitution of the International
Association, apart from any other evidence, constitutes an unfair labor
practice in violation of Section 8(b) (4) (D) of the Act.
The Respondent Local 272 defends on various grounds. Among
these is the assertion that there is no dispute between competing groups
of employees, that the members of the two locals are in agreement on
the question of limiting the number of out-of-county journeymen
who may properly work in their respective geographic jurisdictions,
and that therefore no jurisdictional dispute cognizable under Section
10 (k) of the Act has been evidenced by the record. Local 272 also con-
tends that the agreement between Local 104 and the Sheet Metal Asso-
ciation of San Francisco, of which Valley Sheet is a member, contains
an agreed-upon method for settling the dispute, and that therefore an
order quashing the notice of hearing on this basis is also required.
Local 104, although served with notice of hearing, did not appear
before the hearing officer.
C. Conclusion concerning the applicability of the statute
We are of the opinion that the record in its entirety does not evi-
dence a jurisdictional dispute between competing groups of employ-
ees claiming the right to perform the work in question and that there-
fore there is no dispute cognizable under Section 10 (k) of the statute.
As we are terminating the proceeding on this limited ground, we deem
it unnecessary to pass upon, and therefore express no opinion respect-
ing Respondent's other contentions. We also deem it unnecessary to
decide whether there is reasonable cause to believe that there has been
inducement or coercion within the meaning of Section 8(b) (4) (D).
In the light of the 1960 Supreme Court decision in the CBS case,'
the Board recently ruled that absent evidence of "two or more em-
1 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.
SHEET METAL WORKERS INT'L ASSN., LOCAL 272, ETC. 1405
ployee groups claiming the right to perform certain work tasks" there
can be no factual finding of a jurisdictional dispute cognizable under
Section 10(k) of the Act.2 In the case at bar, there is not only a com-
plete lack of any evidence showing that Local 104 or its members have
claimed or are claiming the disputed work assignment, but there is
also affirmative indication that this union group agrees with the work
claims of the San Mateo County Sheet Metal Workers and desires to
abide by the two-man rule applicable to both union groups.
There is no proof, and the Employer does not assert, that any of his
employees, or any representative of Local 104, ever asked for work
assignments outside San Francisco County, the geographic jurisdic-
tion of that union, or in any way voiced a desire to continue the
assignment made to three of their number on the Folger Coffee Com-
pauy job in October 1960. And Local 104, although served with notice
of hearing in this proceeding, showed no interest in the matter and did
not appear.
The fact that Local 104 is a constituent part of Sheet Metal Workers
International Association, and that its very existence rests upon the
provisions of the International constitution, proves directly its will-
ingness to surrender any claim for work in San Mateo County over
and above more than two men on any one job. Like every other clause
in its basic constitution, the one establishing the two-man rule is not a
coercive force imposed by strangers, or by other unions, but rather a
self-imposed restraint, a form of limitation each member of the Inter-
national Association chose to place upon himself for his ultimate, long-
range employment benefit. In fact, this very record shows that the
particular constitutional provision in question was adopted after a
vote by the membership of the various locals, comprising the
International.
Moreover, acquiescence by Local 104 in the restrictive effect of the
two-man rule, and, consequently, its recognition of the merits of Local
272's work claim in San Mateo County, appears in the voluntary
action of Cambou, the No. 3 journeyman sent by the Employer into
that area. Aware of the two-man rule in the International's constitu-
tion, it was he who chose to alert the business representative of Local
272 to the fact that more than two visiting sheet metal workers were
at work on the Folger Coffee job. His conduct not only shows that
Local 104 was not "pressing" for the disputed work-a fact deemed
significant by the Board in the Safeway decision, supra-but strongly
supports an inference that he desired to conform with the two-man
rule.
Rather than viewing the two-man rule in this case as inherently
illegal, as the Charging Party urges upon us, we consider it the
2 Safeway Stores, Incorporated, 134 NLRB 1320.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kind of internal union arrangement which the Act, particularly under
Section 10(k), is intended to encourage. The very arrangement of
permitting two foreign journeymen to work in the jurisdiction of a
single local appears as a salutary adjustment of traditional geographic
disputes. In conclusion, we find, on the entire record, that the facts
of the case do not present a jurisdictional dispute within the pur-
view of Sections 8 (b) (4) (D) and 10 (k) of the Act. We shall there-
fore quash the notice of hearing.3
[The Board quashed the notice of hearing.]
MEMBER LEEDOM, dissenting :
I would not quash the notice of hearing.
Relying on Safeway Stores, Incorporated, 134 NLRB 1320, my
colleagues find that the facts here do not present a jurisdictional
dispute within the purview of Sections 8(b) (4) (D) and 10(k).
These facts are that Local 272 Representative Ellenberger engaged in
certain conduct, for the object of forcing and requiring Valley Sheet
to assign certain work to members of Local 272 as assertedly required
by the International constitution, rather than to its own employees
who were represented by Local 104. As was pointed out in the dis-
senting opinion in Safeway, this is precisely the situation intended
to be encompassed by Sections 8(b) (4) (D) and 10(k) ; and it is im-
material whether the employees to whom the work has been assigned,
or their representative, are or are not actively seeking the work. It is
sufficient that they are, in fact, doing the work.
Moreover, my colleagues' conclusion here constitutes a substantial
extension of the majority decision in Safeway. In that case, the
majority viewed the dispute as one created by the employer, by its
transfer of work away from employees represented by Respondent
Local 107; and they viewed the conduct of Respondent Local 107
there as an effort to preserve its historical bargaining status. Here,
however, Valley Sheet transferred no work from employees repre-
sented by Respondent Local 272, and that local had no historical bar-
gaining status to preserve; indeed, Local 272 was a complete stranger
to Valley Sheet's operations.
By their decision here, my colleagues have adopted the principle
that they will defer to the unions involved on the issue of whether or
not there is a jursdictional dispute within the meaning of Sections
8(b) (4) (D) and 10(k). They have thus given unions carte blanche
to divide up an employer's operations as they wish, and have denied to
8 Our ruling here is not to be construed as prejudgment that Local 272 's conduct may
not violate other sections of the Act. The sole issue presented, and therefore necessarily
the sole issue decided, is whether Sections 8(b) (4) (D) and 10(k), the only statutory
provisions mentioned in the charge , may properly be invoked on this record.
NEO GRAVURE PRINTING COMPANY, ETC. 1407
employers the benefits of a determination under Section 10 (k) of the
Act. This, in my opinion , is not what Congress and the Supreme
Court intended.
MEMBERS RODGERS and BROWN took no part in the consideration of
the above Decision and Order Quashing Notice of Hearing.
Neo Gravure Printing Company, a Subsidiary of The Cunea
Press, Inc. and New York Mailers ' Union No. 6, International
Typographical Union , AFL-CIO and New York Paper Han-
dlers and Straighteners Union No. 1, of the International
Printing Pressmen and Assistants Union of North America,
Party to the Contract
Neo Gravure Printing Company, a Subsidiary of The Cuneo
Press, Inc. and New York Mailers ' Union No. 6, International
Typographical Union , AFL-CIO. Cases Nos. 22-CA-849 and
22-CA-1013. April 25, 1962
DECISION AND ORDER
On December 29, 1961, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter Respondent filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified herein 2
We find, in agreement with the Trial Examiner, that Respondent
violated Section 8(a) (1), (2), (3), and (5) of the Act. In so holding,
we reject Respondent's contention that a duty of neutrality under the
l As the record, exceptions, and brief adequately present the issues and the positions of
the parties, the Respondent's request for oral argument is denied.
'Member Leedom votes to affirm the Trial Examiner in all respects for the reasons
indicated In the Intermediate Report.
136 NLRB No. 127.