LOCAL 46

LOCAL 46 837 Local 46, Wood, Wire and Metal Lathers International Union, AFL-CIO and Building Trades Employers Association of Long Island, Inc. Local 46, Wood, Wire and Metal Lathers International Union, AFL-CIO, and Wood, Wire and Metal Lathers International Union, AFL-CIO and Acoustical Contractors Association of New York, Inc. Cases Nos. 2-CD-140 and 9-CD-141. May 8, 1958 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 sec- tion 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen...." On March 20, 1957, Building Trades Employers Association of Long Island, Inc. (herein called BTEA) filed with the Regional Di- rector for the Second Region a charge against Local 46, Wood, Wire and Metal Lathers International Union, AFL-CIO (herein called Lathers Local 46) alleging that Lathers Local 46 had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. This charge, as subsequently amended on March 28, 1957, alleged, in substance, that Lathers Local 46 had induced or encouraged employees of E. R. Howell Co. (herein called Howell), D. Fortunato Inc. (herein called Fortunato), Jacobson & Co., Inc. (herein called Jacobson), and other employers, to engage in a concerted refusal to work in the course of their employment, with an object of forcing or requiring such employers to assign particular work to lathers rather than to carpenters. On April 2, 1957, Acous- tical Contractors Association of New York, Inc. (herein called Acous- tical Contractors) filed with the Regional Director for the Second Region a charge against Lathers Local 46 and against Wood, Wire and Metal Lathers International Union, AFL-CIO (herein called the Lathers International). This charge alleged in substance that Lathers Local 46 and the Lathers International had engaged in, and induced and encouraged employees of Jacobson and other employers to engage in, a concerted refusal to work in the course of their employ- ment, with the object of forcing or requiring such employers to assign particular work to employees in such labor organizations rather than to employees in Local Union No. 1772 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein called Carpen- ters Local 1772). 120 NLRB No. 117. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charges and provided for a consolidated hearing upon due notice to all the parties. The hearing was held on July 2 and 18, August 15, and September 6 and 9, 1957, before I. L. Broadwin, hearing officer. The Charging Parties and the Respond- ents appeared at the hearing,' and the Nassau District Council of Carpenters (herein called Carpenters District Council) was permitted to intervene. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. The rulings of the hearing officer made at the hear- ing are free from prejudicial error and are hereby affirmed. After the hearing was concluded, Lathers Local 46, the Lathers International, Acoustical Contractors, and the Carpenters District Council filed briefs which have been considered by the Board. Upon the entire record in this case, the Board finds : 1. Fortunato, Howell, and Jacobson are engaged in commerce with- in the meaning of the Act. 2. Lathers Local 46, the Lathers International, and Carpenters Local 1772 are labor organizations within the meaning of the Act? 3. The dispute : The Facts In March 1956 Jacobson executed a subcontract with Howell, re- quiring Jacobson to install acoustical ceilings in the Parkway Oaks School, in East Farmingdale, New York, and another subcontract with Fortunato, requiring Jacobson to perform similar work in the Albany Avenue School, also in East Farmingdale, about 11/2 miles away. In August 1956 Jacobson executed a contract with Lathers Local 46, in which Jacobson agreed to assign to lathers the work, inter alia, of installing nailing bars and plasterboard. This contract was executed after Lathers Local 46 had caused a strike at a job site not involved in the instant case, and while injunction proceedings were pending in the matter.' The contract contained the following provisions : ARTICLE VI WORK COVERED (5) ... Frames of reinforcing steel , or units made of iron, metal laths, wire lath or mesh, which have been made and as- i Acoustical Contractors' attorney appeared on Jacobson 's behalf. Howell, Fortunato, and Local 1772 were not represented at the hearing , although served with notice thereof. Howell and Fort»nato are members of BTEA. 2 In making this finding as to Carpenters Local 1772, we take official notice of our de- cision in Wood, Wire & Metal Lathers' Internattional Union, Local 46, AFL-CIO (Jacobson & Co., Inc.), 119 NLRB 1658. 8 See Jacobson & Co., Inc., supra. LOCAL 46 839 sembled before arriving at the job, shall be handled after arrival at the job by members of the Union... . (7) The Union agrees that there shall be no restrictions of the use of machinery, tools, appliances, or methods. Members of the Union shall operate all machinery, tools and appliances. ARTICLE VII MANNING OF JOBS The parties hereto agree that they will operate all projects covered by this Agreement on a "Union Shop" basis subject to ratification by an election of employees in accordance with the Labor Management Relations Act of 1947. Should a sufficient number of competent Union Journeymen be unavailable, the employers reserve the right to employ such men as they can obtain to execute their work until the condition is remedied and competent Union Journeymen are available. In November 1956 Jacobson requested the National Joint Board for the Settlement of Jurisdictional Disputes in the Building and Con- struction Industry (herein called the Joint Board) to determine whether carpenters or lathers should be assigned to installing, inter alia, the nailing bars and plasterboard in the school gymnasiums. In December 1956 the Joint Board replied and awarded this work to the carpenters. Jacobson began work on the two schools about the end of 1956 or the beginning of 1957. On March 18, 1957, Jacobson's construction superintendent, James Peggie, directed Jacobson's lathers on each of these projects 4 to install the hangers and the carriers in the gym- nasiums. They refused to do so unless they were also assigned the subsequent steps of installing the nailing bars and plasterboard. Jacobson, however, acting pursuant to the Joint Board award, had assigned this work to the carpenters. John Tierney, a business agent and delegate of Lathers Local 46, told Peggie by telephone that he could not authorize the lathers to go ahead on the Parkway Oaks job, that proceedings were going on with the International, and that there was nothing that could be done at that time. After talking to Tierney by telephone, the lathers on that job "said" that they could not go ahead without authorization from the delegate. After talking by telephone to Tim Spillane, Lathers Local 46's business agent and vice president of the Lathers International, the lathers on the Albany Avenue job "told" Peggie that Spillane had told them that they could not go ahead with the hangers and carriers in the gymnasium 4 One lathing foreman and one lathing shop steward were then working at each job site. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless they were also assigned the installation of the nailing bars and the plasterboard. The lathers' work stoppage continued until the beginning of May 1957, when the United States District Court issued an injunction against it. The contract between Jacobson and Lathers Local 46 expired in June 1957. Applicability of the Statute Section 10 (k) of the Act, which empowers and directs the Board to hear and determine disputes out of which Section 8 (b) (4) (D) charges have arisen, also deprives the Board of authority to make such a determination where "the parties to such dispute submit to the Board satisfactory evidence that they have . . . agreed upon methods for the voluntary adjustment of the dispute." 5 Before, and since, Lathers Local 46 executed its contract with Jacobson, both the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and the Lathers International have been members of the Building and Construction Trades Department, AFL-CIO, which is a signatory to the Plan for Settling Jurisdictional Disputes-the agreement establishing the Joint Board. Accordingly, we find that both these Internationals and their subordinate affiliates, including Lathers Local 46, are bound by the Plan notwith- standing the efforts of the Lathers International to disassociate itself therefrom.6 Because Jacobson submitted the dispute to the Joint Board in the first instance, and ultimately assigned the work in ques- tion in the manner decided by the Joint Board, we find, in accordance with precedent, that Jacobson, too, has agreed upon a voluntary method for the adjustment of the dispute herein, namely, Joint Board procedures.' In view of the foregoing circumstances, showing the disputing unions' membership in the Building and Construction Trades Council and Jacobson's submission to the Joint Board, we conclude and find that when the charge was filed the parties had agreed upon a method for the voluntary adjustment of the dispute in question. The binding effect of this agreement is not affected by the previously executed contract between Jacobson and Local 46, since that contract was im- pliedly made subject to the provisions of the statute relating to agreed- upon methods for the voluntary adjustment of disputes.' Accord- 5 Jacobson & Co., supra. See footnote 5, supra. 4 See footnote 5, supra. 8 Our conclusion that the parties had agreed upon a method of voluntary adjustment renders it unnecessary for us to pass upon Acoustical Contractors ' contention that the contract between Jacobson and Lathers Local 46 cannot serve as a basis for a determina- tion in favor of the Respondents because it contains unlawful union -security provisions. See United Association of Journeymen and Apprentices of the Plumbing and Pipefitting COTTAGE BAKERS 841 ingly, we find that the Board is without authority to determine the dispute, and we shall quash the notice of hearing.' [The Board quashed the notice of hearing.] MEMBER BEAN took no part in the consideration of the above De- cision and Order Quashing Notice of Hearing. Industry of the United States and Canada, Local 428 (Philadelphia Association), 108 NLRB 186, 200 ; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL, Local Union No. 177 (Carrier Corporation), 111 NLRB 940, 945-946 ; United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada, Local 449, AFL (Refrigeration Equipment Co.), 112 NLRB 608, 616-617. e In conformity with the Board 's decision in Wood, Wire and Metal Lathers Inter- national Union, etc., AFL-CIO ( Acoustscal Contractors Association of Cleveland), 119 NLRB 1345, the charge herein will not be dismissed, but will remain on file in the Regional Office pending final adjustment of the dispute Harlan B. Browning and Roy J. Rasco , d/b/a Cottage Bakers and Chauffeurs, Teamsters and Helpers Local Union No. 492, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case No. 33-CA-388. May 8, 1958 DECISION AND ORDER On August 2, 1957, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a brief in support. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. Concerning commerce and the Board's jurisdictional standards the Trial Examiner concluded that the Board would assert jurisdic- tion in this case involving the route salesmen of a single Employer having inflow and outflow less than the Board's existing requirement. He reached this conclusion in view of the fact that the Employer has associated itself with other Employers in bargaining for its production and maintenance employees, and that the Board would assert juris- 120 NLRB No. 99.