United Brotherhood of Carpenters, Etc., Local 1622

UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1622 591 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 All truckdrivers, helpers, and platform employees of Respondent at its Phila- delphia, Pennsylvania, operation, but excluding office clerical employees , guards, watchmen, salesmen, and supervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. On, and at all times since June 9, 1961 , the Union was and has been the ex- clusive representative of Respondent's employees in the appropriate unit for the pur- poses of bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act 5. By failing and refusing to bargain collectively with the Union as the exclusive representative of the employees in the unit described in paragraph 3, above, from and after June 14, 1961 , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of Russell Bailey, Robert Bailey, and James Szymanski, thereby discouraging membership in the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a) (3) of the Act. 7. By engaging in the unfair labor practices set forth in paragraphs 5 and 6, next above, by threatening its employees with discharge if they chose a union as their bargaining representative, and conditioning their reemployment on withdrawal from the Union, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Brotherhood of Carpenters and Joiners of America, AFL- CIO, Local 1622 and Local 88, Wood, Wire and Metal Lathers Union, AFL-CIO and O. R. Karst. Case No. 2O-CD-78. October 29,1962 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed by O. R. Karst, herein called the Employer or Karst, al- leging that United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, Local 1622, herein called the Carpenters Union or Re- spondent, had induced and encouraged employees to strike for the purpose of forcing or requiring the Employer to assign particular work to members of the Respondent rather than to members of Lo- cal 88, Wood, Wire and Metal Lathers Union, AFL-CIO, herein called the Lathers Union. A hearing was held before William F. Roche, hearing officer, between November 20 and 22, 1961. All parties who appeared at the hearing 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- 139 NLRB No. 43. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing are free from prejudicial error and are hereby affirmed. All par- ties herein filed briefs which have been duly considered. Upon the entire record in this case, the Board makes the following findings : 1. O. R. Karst, an individual proprietorship, having his place of business at Albany, California, is engaged as a lathing contractor in the construction industry. Karst is a member of East Bay Lathing Contractors Association of Oakland, an employer-association of lath- ing contractors in the construction industry in Contra Costa and Alameda Counties, California, and vicinity, organized for the pur- pose, inter alia, of engaging in collective bargaining and entering into labor agreements on behalf of its contractor-members with the rep- resentative of their employees. The employer-members of the associa- tion collectively purchase and receive at their California projects goods, materials, and supplies which originate outside the State of California, valued in excess of $50,000 annually, and Karst, himself, annually purchases and receives materials of substantial value from local suppliers to whom such materials are shipped from outside the State of California. We find that O. R. Karst is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The parties stipulated, and we find, that the Carpenters Union and the Lathers Union are labor organizations within the meaning of Section 2 (5) of the Act. 3. The dispute. A. The basic facts F. P. Lathrop Construction Company, herein called Lathrop, was the general contractor for the construction of the Saint Rose Hospital at Hayward, California. Lathrop subcontracted the lathing and plastering work on this job to Marconi Plastering Company, herein called Marconi. Marconi in turn subcontracted the lathing portion of its contract to Karst. Included in Karst's contract was the construction of a suspended ceiling. This involves the installation of vertical hanger wires at- tached in parallel rows to the concrete slab, wood joists, or other structure forming the underside of the floor above; the attaching of a 11/2-inch iron channel in horizontal parallel rows by bending the lower ends of the hanger wires around the channel bars; and finally, and this is the work here in dispute, the attaching of Jackson bars or other types of nailing bars, by wire saddle-ties below and at right angles to the channel bars in horizontal parallel rows. The Jackson bars (a trade name for a type of nailing bar) are metal rods designed to receive nails or screws, by which a backboard (of sheet rock, gyp- sum board, or other plaster board) is attached, to which in turn some acoustical material is affixed. UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1622 593 The Carpenters Union and the Lathers Union have no dispute as to the installation of backboard and acoustical tile, which they agree is within the Carpenters Union's jurisdiction, or as to the installation of hanger wires and channel bars which they agree is within the jurisdiction of the Lathers Union. The dispute is only as to who shall attach the nailing bars to the channel bars. Karst began work on the project on November 7, 1960, and about April 17, 1961, his employees, represented under a collective- bargaining agreement by the Lathers Union, began installing Jackson bars. On July 12, 1961, members of the Carpenters Union, which had a collective-bargaining agreement with Lathrop, began to picket the construction site with signs reading "PICKET, AFL-CIO." A work stoppage occurred with carpenters and most of the other build- ing trades craftsmen, other than Karst's lathers, walking off the job. On July 13, 1961, Lathrop notified Marconi and Karst to cease im- mediately the installation of Jackson bars with Karst employees, members of the Lathers Union. The next day, when Karst's em- ployees stopped installing Jackson bars, the Carpenters Union re- moved the pickets and its members returned to work. On July 19, 1961, Karst's lathers resumed installation of Jackson bars but discontinued this operation at the end of the day when Karst received instructions from Lathrop to discontinue operations until they could be rescheduled so as not to interfere with other work on the project. On September 12, 1961, the Carpenters Union entered into a stipulation in a proceeding under Section 10 (1) of the Act that it would not picket the Saint Rose Hospital project site, and on Sep- tember 13, 1961, Karst resumed installation of the Jackson bars. In the latter part of April 1961, the Carpenters Union submitted the instant dispute to the National Joint Board for the Settlement of Jurisdictional Disputes and that body in a letter dated May 5, 1961, assigned the disputed work to the Carpenters Union. The Carpenters Union and the Lathers Union as members of the Building and Con- struction Trades Department, AFL-CIO, are bound by Joint Board determinations in jurisdictional dispute situations. Lathrop, as a member of Associated General Contractors, is also bound, as the AGC is signatory to the plan. However, neither Karst, nor the East Bay Lathing Contractors Association of Oakland, of which he is a member, had ever agreed to be bound by any decision of the National Joint Board. B. Contentions of the parties Karst contends that his assignment of the work in dispute to lathers was the correct one since it follows the long-prevailing practice and custom in the area of using lathers for such work. He further con- tends that he is not bound by any award of the National Joint Board 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Settlement of Jurisdictional Disputes since that board did not have jurisdiction to issue an award in the matter. The Carpenters Union contends that there is no active jurisdictional dispute between carpenters and lathers since their dispute has been settled by the award of the Joint Board, both Unions being contrac- tually bound by such settlement, leaving only a dispute between Karst, and the Carpenters Union. The Carpenters Union further contends that if the Board decides that a jurisdictional dispute exists, it should accept the award of the National Joint Board as dispositive of the dispute, or assign the work to carpenters on the merits. The Lathers Union asserts that there is a jurisdictional dispute be- tween two groups of employees, that the Board is not bound by the jurisdictional award of the National Joint Board because Karst had never agreed to be bound by any Joint Board determination, and that on the merits the disputed work should be assigned to lathers. C. Applicability of the statute Before the Board may proceed to a determination of dispute pur- suant to Section 10 (k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated. The record shows that the Carpenters Union picketed the Saint Rose Hospital job with an avowed object of forcing or requiring the assignment of certain work to its members rather than to members of the Lathers Union who were then performing the work. The work stoppage occurred as a result of the picketing. The Carpenters Union, however, contends that the Board is pre- cluded from making a determination of the dispute in this case because of the existence of an agreed-upon method of adjustment of the dispute by the National Joint Board. It contends specifically that the Na- tional Joint Board decision of May 5, 1961, in this matter, indicates that such agreed-upon method of adjustment existed. In this con- nection, the parties agreed that the Carpenters and Lathers are bound by the Joint Board procedure by virtue of their affiliation with the AFL-CIO Building and Construction Trades Department and that Lathrop is bound because of its membership in the Associated Gen- eral Contractors which organization has agreed to be bound by the Joint Board determinations. O. R. Karst, however, neither as an individual contractor nor as a member of the local lathers association, at any time agreed to be bound by decisions of the Joint Board. In fact he indicated at the hearing that he had never even heard of the Joint Board until about the time it had rendered its decision in this matter. We have previously held that where one party had not agreed to be bound by a decision of the Joint Board "it cannot be said that the parties have submitted to us `satisfactory evidence that UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1622 595 they have adjusted, or agreed upon methods for the voluntary adjus- ment of, that dispute."' International Union of Operating Engineers, Local 66, AFL-CIO (Frank P. Badolato di Son), 135 NLRB 1392.' On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred, and that the dispute is properly before the Board for determination under Section 10 (k) of the Act. MERITS OF THE DISPUTE In determining a dispute such as this, the points urged by the parties may be helpful in reviewing the evidence supporting the claims of the parties : (1) Existing bargaining agreements: There is no Board certifica- tion of representatives applicable to either of the two groups compet- ing for the disputed work. Each Union claims the work on the basis of its collective-bargaining agreement. The Carpenters Union con- tract with Lathrop covers "carpenters' work" without specifying ex- actly what that includes. Karst's contract with the Lathers Union states that the work of installing light iron furring, such as the Jackson bar system, shall be performed for Karst by members of the Lathers Union. However, these are self-serving statements of jurisdiction by the respective unions and cannot be said to be any- thing more than a claim to the work. (2) Basic craft jurisdiction: This again is a matter of self-serving statement and promotion of interest by each union. The historical jurisdiction of the Carpenters Union is over woodwork, whereas the Lathers Union has claimed all work concerned with the use of light iron construction, furring, and lath (whatever the material) used for the purpose of holding plaster or like material in place. Over the years there have been various disputes between the Unions without any final resolution of the instant problem. Immediately after World War II suspended ceilings were made of wood with wood runners and furring, with the necessary installation work being performed by carpenters. Since then the materials in use have changed and now suspended ceilings are mainly made with metal runners (chan- nel bars) and furring (in this case Jackson bars). With the change in material used for runners came a change in assignment of this work, the Carpenters Union now conceding that the work of installing channel bars is properly that of the Lathers Union. Accordingly, each union may be said to have some historical basis for its claim to the 'Local Union 825, International Union of Operating Engineers , AFL-CIO (\ rclwls rSlectric Company), 137 NLRB 1425 ; of Ironworkers Local No 708 , International Asso- ciation of Bridge, Structural and Ornamental Ironworkers , AFL-CIO ( Armco Drainage and Metal Products Co , Inc ), 137 NLRB 1753 672010-63-vol 139-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work here in dispute, the installation of furring, but neither claim is dispositive. (3) Assignment of the contractor who performed the work : Karst, a lathing contractor, customarily used members of the Lathers Union of which he had formerly been a member, to perform work for him. Accordingly, his assignment of the work indicates merely that he be- lieved that members of the Lathers Union were capable of satis- factorily performing the work in dispute. (4) Decisions of the National Joint Board in other cases: The Carpenters Union offered in evidence about 300 decisions by the Na- tional Joint Board over the past 12 or 13 years involving disputes occurring all over the United States all of which awarded work sim- ilar to that here in dispute to the Carpenters Union. From this the Carpenters Union contends that it is clear that carpenters are entitled to perform the work in dispute. The Lathers Union draws an en- tirely different conclusion from these facts. It contends that the vol- ume of decisions indicate that carpenters are not regularly assigned the work in dispute and that whatever the reasons which caused the National Joint Board to award the work in dispute to carpenters, the great number of awards indicates that such awards are not regu- larly followed. We do not believe that such decisions indicate more than that the instant dispute between the Unions is one of long stand- ing and that neither Union has conceded to the other the right to per- form the work in dispute. (5) Training and apprenticeship requirements of the Unions: The Carpenters Union offered no evidence at the hearing to show that spe- cial training was given its apprentices in the installation of furring for suspended ceiling, merely contending that its members were quali- fied to perform the work. On the other hand, the Lathers Union offered in evidence the textbook used in the course given for apprentice lathers and prepared by the California State Department of Educa- tion, which has a specific section dealing with the installation of nail- ing channel, such as Jackson bars. Testimony at the hearing also indicated that 60 hours of instruction during the 3-year apprentice- ship program for lathers are devoted to this subject. (6) Area practice: A great deal of stress was placed by both Unions on practice in the area. In reviewing this evidence of record we note that although witnesses for the Carpenters Union made broad asser- tions as to the use of its members to perform the work, the only un- controverted evidence as to the use of carpenters to perform the work in dispute on a major project was in the city of San Francisco, which is outside of the immediate project area. On the other hand, the Lathers Union and Karst offered a great deal of evidence to indicate that lathing contractors are utilized to perform the work here in dis- UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1622 597 pute and that these lathing contractors invariably employ members of the Lathers Union to perform this work. It should also be noted that the architectural specifications for the project included the work in dispute within the general section of lathing and plastering, and not in that on carpentry, thereby indicating that at least in the archi- tect's opinion the work in dispute is customarily done by the lathing contractor. (7) Comparative efficiency of operation : The record indicates that when the Jackson bars are installed by laLhers as an integral part of the job less time is spent on the work than when the channel bars are put in by lathers and then carpenters are utilized later to put nailing bars in place. The reason for this decreased efficiency is apparent when the methods of installing a suspended ceiling are analyzed. The channel bars run parallel to each other suspended from the ceiling and must be held rigid so that they may be level. The Jackson bars in addi- tion to holding the acoustical materials perform this function. How- ever if installation of Jackson bars is delayed until the acoustical ma- terial is to be installed, the lathing contractor must use some other bar placed perpendicular to the channel bar in order to achieve the re- quired rigidity for leveling purposes. Since these bars are merely placed temporarily, they must later be removed and Jackson bars in- stalled. Obviously this involves a duplication of effort. Conclusions as to the Merits of the Dispute In International Association of Machinists Lodge No. 1743, AFL- CIO (J. A. Jones Construction Company), 135 NLRB 1402, the Board set forth certain factors which it believes should be considered in determining who is entitled to the disputed work. It was noted therein that every decision would have to be an act of judgment based on commonsense and experience. It appears from the record that while the first four factors discussed above do not offer decisive support to either side, the final three factors-the training of union members, the area practice, and the comparative efficiency of operation-all indicate the superior claim of lathers to perform the work in dispute. We conclude, therefore, from the facts presented to us, that the assign- ment of the work in dispute by Karst to his employees, members of the Lathers Union, should not be disturbed. Accordingly, we shall de- termine the existing jurisdictional dispute by deciding that lathers, represented by the Lathers Union, rather than carpenters, represented by the Carpenters Union, are entitled to the work in question. In making this determination, we are assigning the disputed work to the employees of Karst who are represented by the Lathers Union, but not to the Lathers Union or to its members. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Upon the basis of the foregoing finding, and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act : 1. Lathers employed by O. R. Karst, who are represented by Local 88, Wood, Wire and Metal Lathers Union, AFL-CIO, are entitled to perform the work of installing Jackson bars or other nailing bars used in construction of the suspended ceilings on the Saint Rose Hospital project at Hayward, California. 2. United Brotherhood of Carpenters and Joiners of America, AFL-- CIO, Local 1622, is not, and has not been, lawfully entitled to force or require 0. R. Karst to assign the above work to carpenters. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1622, shall notify the Regional Director for the Twentieth Region, in writing, whether or not it will refrain from forcing or requiring 0. R. Karst, by means proscribed by Sec- tion 8(b) (4) (D), to assign the work in dispute to carpenters, who are its members, rather than to lathers employed by 0. R. Karst, who are represented by Local 88, Wood, Wire and Metal Lathers Union, AFL-CIO. Wood, Wire & Metal Lathers International Union , Local No. 328, AFL-CIO and Acoustics & Specialties, Inc. and United Broth- erhood of Carpenters and Joiners of America , Local Union No. 1340, AFL-CIO. Case No. 07-CD-32. October 29, 1962 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the Act following charges filed by Acoustics & Specialties, Inc., herein called Acoustics, alleging that Wood, Wire & Metal Lathers International Union, Local No. 328, AFL-CIO, herein called Lathers Union, had threat- ened, coerced, or restrained Acoustics, with an object of forcing or requiring Acoustics to assign certain work to members of the Lathers Union rather than to Acoustics' own employees who are members of United Brotherhood of Carpenters and Joiners of America, Local Union No. 1340, AFL-CIO, herein called Carpenters Union. A duly scheduled hearing was held before Alvin Lieberman, hearing officer, on November 16, 1961. All parties appeared at the hearing and 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 139 NLRB No. 44.