Carpenter District Council of Detroit, etc.

)E( DISIONS OF NATIONAL. LABOR RF.LATIONS BOARD Carpenters District Council of Detroit, Wayne, Oak- land, Macomb, Sanilac, St. Clair, Monroe Counties and Portions of Livingston County, AFL-CIO and Dominic DiCosmo, an Individual d/b/a DiCosmo Siding Contractor and Builders' Association of Southeastern Michigan, Associated General Con- tractors of America Detroit Chapter Inc., Carpenter Contractors' Association of Detroit, and Michigan Carpentry Contractors' Association,' Parties to the Contracts. Case 7 CE-30 July 25, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) M 1MBHERS JNKINS AND) MURPhY Upon charges filed by DiCosmo Siding Contractor (herein called DiCosmo) the General Counsel of the National Labor Relations Board, acting through the Regional Director for Region 7, issued an order con- solidating cases, complaint, and notice of hearing dated November 2, 1977. in Cases 7 CC-969 and 7 CE-30, charging that Respondent had engaged in certain unfair labor practices. Respondent filed an an- swer, and a hearing began in Detroit, Michigan. on April 10, 1978, before Administrative Law Judge Ber- nard Ries. At the hearing the Administrative Law Judge granted a motion to sever Case 7-CC-969 from the consolidated complaint and to approve an infior- mal settlement of Case 7 CC 969. The General Counsel and Respondent then offered into evidence a written stipulation of facts relating to Case 7 CE 30. stated that they waived a decision from the Adminis- trative Law Judge. and moved to transfer the case directly to the Board ftr decision. The Administrative Law Judge received the stipulation into evidence, granted the motion to transfer, and a set a time for the filing of briefs. Later he issued a written order granting the motion and transferring the proceeding to the Board. Thereafter Respondent and the General Counsel filed briefs with the Board. By letter to the parties. dated June 9, 1978, the Board acknowledged receipt of the stipulation and stated it would review the stipu- lation and decide whether it should be approved or I The employer associations named in the caption of the case were not charged with any violation of the Act. and no relief was sought from them in this proceeding They were named because of collective-hargaining contracts which they have with Carpenters District Council of Detroit. Wayne. Oak- land. Macomb. Sanilac. St. Clair Morroe Counties and Portions of l.iving- ston County. AFL-CIO (herein called Respondent). A the hearing the named associations,. except Builders' Association of Southeastern Michigan (herein Builders) appeared by counsel, stated their desire not to intervene, and requested that their names be deleted from the complaint. The Admin- istrative Law Judge granted the request. rejected. As the parties had already filed briefs, the letter specified that no further briefs might be sub- mitted unless specifically requested by the Board. The Board has duly considered the matter and hereby adopts the ruling of the Administrative Law Judge making the stipulation a part of the record herein and transferring the proceeding to the Board for the pur- pose of making findings of fact and conclusions of law, and of issuing a Decision and Order. Pursuant to the provisions of Section 3b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. IThe Board has considered the entire record and the briefs tiled by the parties. and hereby makes the fol- lowing findings and conclusions. I. lt BUSINI:SS ()I 1Il1 EMPI.()YIRS Dominic Di('osmo. an individual proprietor doing business under the name of DiCosmo Siding Contrac- tor, maintains an office and place of business in Royal Oak, Michigan, and is engaged in the business of in- stalling aluminum siding and related products on res- idential and other structures in the metropolitan area of Detroit. Michigan. During the year ending Sep- tember 30, 1977. which period is representative of its operations. DiCosmo. in the course and conduct of his business, purchased and caused to be transported and delivered at his place of business and jobsites, all located in the State of Michigan. aluminum extru- sions and other goods valued in excess of $20,000. of which goods and materials valued in excess of $2,000 were transported and delivered to his place of busi- ness and jobsites, all located in Michigan, directly from points located outside the State of Michigan. During the year 1977, more than $50.000 worth of materials were to have been shipped to the Constitu- tion Hill jobsite. Woodhaven, Michigan, directly from points located outside the State of Michigan. At all times material Builders. Associated General Contractors of America Detroit Chapter Inc., Car- penter Contractors' Association of Detroit, and Michigan Carpentry Contractors' Association, each has been a membership association of employers in the construction industry. Each association represents its employer-members for purposes of collective bar- gaining with unions representing various building and construction crafts, including Respondent. During the year ending September 30. 1977. which period is representative of their operations, each asso- ciation, by its respective employer-members, in the course and conduct of the business operations of the respective employer-members, purchased and caused to be transported and delivered at various offices and jobsites, all located within the State of Michigan, 243 NLRB No. 90 678 CARPENTERS DISTRICI COUNCIl. OF DETROIT, ETC. building materials of which in excess of $50,000 were transported and delivered to the locations directly from points located outside the State of Michigan. During the year ending September 30, 1977, which period is representative of its operations, each associ- ation, by its respective employer-members. in the course and conduct of the business operations of the respective employer-members, sold private residences and other related structures to the public, the total value of which exceeded $500,000. The parties stipulated that the Board has jurisdic- tion based on the facts pleaded and admitted. We find that the associations named above and DiCosmo are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. TIHIE ABOR OR(iANIZATlON INVOIA lI) Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ill. liLt Al lF(itI) UNFIAIR I ABOR P'RA(II S A. The Frts Respondent is a council of several local unions af- filiated with the United Brotherhood of Carpenters and Joiners of America. AFI. C10. and is the collec- tive-bargaining agent of carpenters who are members of and represented by those local unions in a mul- ticounty geographic area in southeastern Michigan. Respondent has negotiated collective-bhargaining agreements with each of the four employer associ- ations referred to above for several years. Since 1950. Respondent and the associations have had continu- ous and ongoing collective-bargaining relationships. including processing grievances, settling disputes aris- ing under the agreements, jointly administering fringe benefit programs, and otherwise acting as bargaining agents. In some years each association negotiated with the Union separately: in some years. two or three associations negotiated jointly and the remain- ing association or associations negotiated separately with the Union; and in 1964 all four associations ne- gotiated jointly with the Union. The 1976 collective-bargaining agreements be- tween the associations and Respondent. provided in article 111. section D: The Employer agrees that he will not of his own volition enter into subcontracts for work covered by this Agreement to be done at the site of the construction, alteration, or repair of a building, structure, or other work with any con- tractor who does not have a signed agreement with the Union; provided. however, that where there is any dispute over work jurisdiction or as- signment of work such dispute shall be governed by Article 1I, hereofl: Kaufman and Broad is, and has been for at least 12 years, a member of Builders, which acts as its collec- tive-bargaining representative. Kaufman and Broad was the builder on the Constitution Hill jobsite and subcontracted to DiCosmo the application of alumi- num siding. which is work covered by article Ill, sec- tion D. Respondent claimed that Kaufman and Broad acted in violation of article 1Il, section D. Since April 11. 1977, Kaufman and Broad has had five jobsites on which work was being performed within the jurisdiction of Respondent. With the ex- ception of DiCosmo, all subcontractors on these five jobsites were unionized. Kaufman and Broad has hired directly only one carpenter since 1974.1 This carpenter was employed from September 5, 1977. un- til September 23. 1977. B. The Issues (fand (Contentison The issue in this case is the legalit\ under Section 8(e) of the Act of article Ill. section ). of the agrec- ments between Respondent and the associations. he General Counsel contends that article III. section D. contravenes Section 8e} and is unprotected bh the construction industry proviso to Section 8e) as inter- preted in Connell ('lonstrluiol (Co., 1,1(. . Plhumbehrs & SteanIitters .(Local nion ,%o. 100, L) ited A. vociatlin(J of Jo iurneicit'c n ,/lpreicc of t/t Plumhinig & Pipe- fitting Indqrvl, of/ the t nired lualc atnd (anadat .4 I1. ('10. 421 .S. 616 1975). It is the General Counsel's position that. under the rationale of ('oninell, the sub- contracting provision is not protected hb the proviso because its operation is not limited to times when. and jobsites where, the employers have employees represented b Respondent. and because the provi- sion requires that subcontractors have a contract spe- cificall with Respondent. Therefore. the General Counsel urges that Respondent violated Section 8(e} by entering into, maintaining. giving effect to. and enforcing article 111. section D. Respondent disagrees with the General ('ounsel's analysis of ('Conell, anti argues that the complaint should be dismissed, C. Discussion tand (Conecuril.s We conclude that article Ill section D,. which is a "union signatory" clause contravening Section 8e). is 2 The language of art III. sec D. as set out ahoe (A Ih minor difference,). was introduced into the arious colleclse-bargaining agreements in 1960 and has remained in the agreements ince that time ' Acording Ihe reports and conlrlbhullion made t the (Carpenters Pen- sion Irust und l)etroil and Vicinilts hb K;alulni l iand Boa.lrd. h.een 1966 and Nosember 1974, Kaulman and Broald direills cmplo.ed berten h and 38 carpenters per nm,,nth suihin the ]url.11ill .iI t Rcplidenlt 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protected by the construction industry proviso to Sec- tion 8(e).4 As we interpret the Connell decision,5 the proviso privileges subcontracting restrictions in the context of a collective-bargaining relationship. and possibly even without such a relationship if the re- strictions are aimed at avoiding the Denver Building 4 See Carpenters Local No. 44. United Brotherhood of Carpenters and Join- ers of America, AFL ('10 et al (Woelke & Romero Framing, Inc.). 239 NLRB 241 (1978). See the following cases in which the Board considered the import of the Connell decision: #Woelke & Romero Framing, Inc. supra: Colorado Building & Construction Trades (Council (Utilities Services Engineering, Inc.). 239 NLRB 253 (1978): Los Angeles Building and Construction Trades Council et al. (Donald Schriver. Inc.). 239 NLRB 264 (1978): International Union / Operating Engineers Local No. 701, AFL C10. Oregon-Columbia Chapter, The Associated General Contrai-tors ofAmerica, Inc. Pacific Northi'est Chap ter of the i4ssociated Builders & Contractors Inc J. 239 NLRB 274 (1978): Carpenters Local Union 1 5 Uniled Brotherhood of Carpenters & Joiners / America. AFL CIO (Metro lathing & Plastring, Inc). 240 NLRB 255 (1979); Los Angeles Count District Counil of Carpenters. 'nited Brother- hood of Carpenters and Joiners of America. A FI (O1. r a. ('WlKu (Construc- tion Compan . Inc), 242 NLRB 801 (1979) Trades problem." Clearly. article III, section D, is in the context of a collective-bargaining relationship as it is part of a complete bargaining contract covering a multiemployer unit represented by Respondent for several years. Accordingly. we find Respondent did not violate Section 8(e) by reason of article Ill. sec- tion D. CON(LUSION ()F LAW Respondent has not engaged in the unfair labor practice alleged. ORDER Pursuant to Section 10(c) of the National l.abor Relations Act, as amended. the National Labor Rela- tions Board hereby orders that the complaint herein be. and it hereby is, dismissed in its entirety. " 1 R B s; Denier uilding and ('ntiructioti Trafid ( .icd, it al /Gould & Premner/, 341 S. 675 (95 1) 680