United Brotherhood of Carpenters and Joiners of America

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 581, AND HORACE DAGNAN, ITS BUSINESS AGENT and ORA COLLARD.. Case No. 14-CD-21. February 26, 1952 Decision and Determination of Dispute STATEMENT OF THE CASE 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 April 25, 1951, Ora Collard filed with the Regional Director for the Fourteenth Region a charge against United Brotherhood of Carpenters and Joiners of America, Local 581, and Horace Dagnan, its business agent, herein sometimes called the Respondents, alleging that they had engaged in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.74 and 102.75 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for a hearing upon due notice to all parties. The hearing was held before Milton O: Talent, hearing officer, on December 20, 1951. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence hearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby -affirmed. The Respondents' motion made at the hearing to dismiss the notice of hearing and the unfair labor practice charge is denied for the reasons given herein- after. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board finds : 1. Aronson's Business Knute E. Aronson, the primary employer, is a general building contractor having his principal place of business in Herrin, Illinois. During 1950, Aronson performed within the State of Illinois contract- ing services valued in excess of $50,000 for companies each of which annually shipped outside the State goods valued in excess of $25,000. The parties admit, and the Board finds, that Aronson is engaged in commerce within the meaning of the National Labor Relations Act. 98 NLRB No 47. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS, ETC. 347 2. The Dispute a. The facts Aronson's principal business as a general contractor is the dis- mantling and reassembling of buildings. Ora Collard, the charging party, has a small sheet metal business. From 1947 to March 1951, Collard did all the sheet metal work on Aronson's various jobs, em- ploying from 1 to 20 employees. Early in 1951, Aronson was engaged in dismantling and reassembling a building for General Radiator Company. Part of the work was performed by carpenters employed directly by Aronson. As usual, Collard and his employees, who were members of the Sheet Metal Workers Union, were removing and rein- stalling corrugated iron roofing and siding. About the middle of February 1951, Respondent Dab an, business agent of Carpenters' Local 581, asked Aronson to remove the sheet metal workers and replace them with carpenters. Aronson refused, saying that he had no authority to do so. On February 21, 1951, the Carpenters' International notified Dagnan that the application of corrugated metal siding and roofing to wood frame buildings (the work being performed by Collard and his employees) belonged to the 'Carpenters, and that Aronson, a member of the Carpenters Union, should so assign the work. On March 1, 1951, Aronson together with '6 or 7 of the carpenters employed directly by him, attended a meeting of Local 581, at which a motion was passed "that no more carpenters of 581 work for Aronson on the job involved until jurisdiction is settled on corrugated roofing and siding." Following this meeting, Aronson notified Collard that he was going to take the sheet metal workers off the job. Collard acquiesed. Aronson then replaced the sheet metal workers doing the corrugated iron work with carpenters whom he employed directly. Aronson's work on the General Radiator job was completed in April. Since that date he has finished a second job, and at the time of the hearing was at work on a third. The present job has corrugated roofing and siding work, the kind formerly done by Collard and his sheet metal workers, and now being performed by carpenters. In a manner not clear in the record,' the dispute. over who should 'do the corrugated iron work was put before the National Joint Board for Settlement of Jurisdictonal Disputes, Building and Construction Industry. The submission was not pursuant to an agreement, either oral or written, among the parties. Nor were Aronson or Collard ' Collard testified that he had written to the National Joint Board , but was hazy on his dates. He also stated that he had discussed his case with the business agent of the local Sheet Metal Workers Union . The initial telegram from John T. Dunlop, chairman of the National Joint Board , attempting to dispose of the dispute , mentions only the president of the Sheet Metal Workers International as the moving party in bringing the dispute before the Joint Board. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of employer associations which had agreed to submit juris- dictional disputes to the National Joint Board. In any event, on March 20, 1951, the chairman of the National Joint Board notified all parties that the Joint Board had voted that the contractor (Aronson) "proceed with the work as orignally assigned, which was to Sheet Metal Workers." Local 581 and Aronson ignored this, as well as several additional notifications of like tenor. On April 24,1951, Collard filed the present charge. On December 3, 1951, the chairman of the National Joint Board sent all parties a telegram, which stated that on November 30, 1951, the Joint Board had considered the jurisdictional dispute between the Carpenters and the Sheet Metal Workers; that it had voted that it had no authority to determine the assignment of contracts and had not done so in its earlier decision; and that the former decision did not apply to work currently in progress. Our Regional Director, on December 6, 1951, served all parties with notice of the charge filed and notice of hearing. b. Contentions of the parties Collard, the charging party, asserts that by the conduct aforesaid the Respondents have violated Section 8 (b) (4) (D) of the Act. The Respondents contend that (1) the General Radiator job having been completed, the matter is moot, and (2) at the time of the hearing, the dispute was before the National Joint Board.2 c. Applicability of the statute Collard has charged, and the record shows, that the present case arises from the successful efforts of the Respondents to force the assign- ment of corrugated iron work to carpenters rather than to sheet metal workers. The dispute is therefore properly before this Board unless, as urged by the Respondents, it has become moot or is in the process of being settled in a manner provided by statute. Although the particular job which gave rise to the present case has been completed, the underlying jurisdictional dispute has not been resolved. It exists as much on Aronson's present job as on the com- pleted jobs. A determination by the Board is therefore still necessary. Accordingly, we reject the Respondents' contention that the case is moot.' 2 In support of the motion to dismiss, the Respondents also contend that the 8 (b) (4) (D) charge is inconsistent with an 8 ( b) (2) charge , also filed by Collard against Local 581. Irrespective of the existence of the latter charge and claimed inconsistency, this does not constitute a defense to this proceeding. 3 Local 4, United Brotherhood of Carpenters and Joiners of America (Ira A. Watson Company ) v. N. L R B , 341 U. S 707 ; N. L R B. v Denver Building and Construction Trades Council (Henry Shore), decided October 18, 1951, 28 LRRM 2660 (C. A. 10) ; Wood Wire and Metal Lathers International Union, Local No 234, AFL (Acousti Engi- neering Company ), 97 NLRB 574. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS, ETC. 349 Section 10 (k) provides that whenever a person is charged with having violated Section 8 (b) (4) (D) : the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed. (Emphasis supplied.) There is no evidence that the parties have adjusted their dispute. In fact, the evidence points to the contrary. Nor is there any evi- dence that they have "agreed upon methods for the voluntary adjust- ment of the dispute." Unlike the Manhattan Construction Company case,4 there is no evidence here of any agreement by the interested parties to submit the jurisdictional dispute to the National Joint Board and to be bound by its determination. All that the record shows is that either Collard or the Sheet Metal Workers (which is not a party to this proceeding) induced the Joint Board to accept juris- diction; that the Joint Board issued a decision which the Respondents and Aronson ignored; and that finally the Joint Board declared that its decision applied only to the General Radiator job which had been completed and was not intended to apply to work then in progress. This is not the kind of "agreed upon method for the voluntary ad- justment" of a jurisdictional dispute intended by the statute to free the National Labor Relations Board from the mandate to hear and determine the dispute. We so find. d. Merits of the dispute At the time the Respondents demanded of Aronson that the corru- gated iron work be given to carpenters, Aronson had assigned such work to subcontractor Collard, who employed sheet metal workers. The Respondents objected not to the subcontracting, but to the fact that sheet metal workers rather than carpenters were doing a particu- lar type of work. The dispute in essence was therefore one over an employer's assignment of work to members of one rather than another craft. It is now well established that an employer is free to make such as- signments free of strike pressure by a labor organization, "unless such employer is failing to conform to an order or certification of the Board ' United Brotherhood of Carpenters and Joiners of America, Local 943, AFL ( Manhattan Construction Company, Inc ), 96 NLRB 1045. See also International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Wm F. Traylor), 97 NLRB 1003. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determining the bargaining representative for employees performing such work." 5 The Respondents do not claim that Carpenters' Local 581 is the certified bargaining representative for employees perform- ing the corrugated iron work. We find, accordingly, that the Respondents were not lawfully en- titled to require Aronson to assign the corrugated iron work to carpenters rather than to sheet metal workers. We are not, however, by this action to be regarded as "assigning" the corrugated iron work in question to sheet metal workers or to subcontractor Ora Collard.6 Determination of Dispute Upon the basis of the foregoing findings of fact, and upon the en- tire record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the amended Act : 1. United Brotherhood of Carpenters and Joiners of America, Local 581, and Horace Dagnan, its business agent, are not, and have not been, lawfully entitled to force or require Knute E. Aronson to assign cor- rugated iron work to carpenters rather than to sheet metal workers. 2. Within 10 days from the date of this Decision and Determination of Dispute, the Respondents shall notify the Regional Director for the Fourteenth Region in writing as to what steps the Respondents have taken to comply with the terms of this Decision and Determina- tion of Dispute. MEMBER STYLES took no part in the consideration of the above De- cision and Determination of Dispute. a Juneau Spruce Corporation, 82 NLRB 650. 6 International Hod Carriers, Building, and Common Laborer's Union of America, Local No. 231, AFL (Middle State Telephone Company of Illinois ), 91 NLRB 598: Los Angeles Building and Construction Trade Counsel, AFL (Westinghouse Electric Corporation), 83 NLRB 477. SCENIC CITRUS COOPERATIVE, INC. and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORK- ERS OF AMERICA, C. I. 0., PETITIONER. Case No. 10-RC-1666. Feb- ruary 201,1950 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Frank E. Hamilton, Jr., bearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 98 NLRB No. 49.