Cuyahoga, Lake, Etc., Counties District Council

CUYAHOGA, LAKE, ETC., COUNTIES DISTRICT COUNCIL 163 Cuyahoga, Lake, Geauga and Ashtabula Counties District Coun- cil and Locals 11, 182, 105, 404, United Brotherhood of Car- penters and Joiners of America, AFL-CIO and The Berti Company and Cuyahoga, Lake, Geauga and Ashtabula Counties District Council and Locals 11, 182, 105, 404, United Brother- hood of Carpenters and Joiners of- America , AFL-CIO and Richard Small, John E. Ferguson, Carl Butkovic, John Robert- son, Albert Kobe, and Albert Marotta. Cases Nos. 8-CD-30 and 8-CD-31. April 22, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the Act following separate amended charges filed in Case No. 8-CD-30 by The Berti Company, herein called Berti, and in Case No. 8-CD-31 by Richard Small, John E. Ferguson, Carl Butkovic, John Robertson, Albert Kobe, and Albert Marotta, as individuals, alleging that Cuyahoga, Lake, Geauga and Ashtabula Counties District Council and Locals 11, 182, 105, 404, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Respondents or the Carpenters, had induced and encouraged employees to strike for the purpose of forcing or requiring Berti to assign particular work to members of the Respondents rather than to members of Local No. 2, Wood, Wire and Metal Lathers International Union, AFL-CIO, herein called Local 2.1 Pursuant to an order consolidating cases and notice of hearing, a hearing was held before Charles Slaughter, hearing officer on October 17, 18, and 19, 1962, and before Allen R. DeLong, hearing officer, on December 10 through 14, 1962. 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 officers made at the hearings are free from prejudicial error and are hereby affirmed. The Respondents and Local 2 filed briefs herein which have been duly considered. . Upon the entire record in this case, the Board makes the following findings : 2 1. The. business of the Employer Berti, a Michigan corporation with its principal office located in Detroit, is engaged as a lathing and plastering contractor in the building and construction, industry. Berti has a $1,100,000 contract 1 Case No. 8-CD-31 also alleged that the Respondents by certain acts violated Section 8(b) (1) (A) of the Act. We make no decision on this issue as it is not within the purview of a Section 10(k) proceeding. 2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. - 142 NLRB No. 22. 712-548-64-vol. 142-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Malan Construction Company, herein called Malan,3 for plaster- ing, lathing, and accoustical tile installation at the United States Veterans Hospital, Wade Park, Cleveland, Ohio, herein called the Wade Park Hospital. Malan has a prime contract with the United States Veterans' Administration for construction of the Wade Park Hospital. During the year preceding the hearing, Berti purchased over $50,000 worth of materials for, and had shipped to, the Wade Park Hospital job from outside the State of Ohio. We find that Berti and Malan are engaged in commerce within the meaning of the Act. 2. The labor organizations involved The parties stipulated, and we find, that the Respondents and Local 2 are labor organizations within the meaning of Section 2(5) of the Act. 3. The dispute The Work at Issue Donn nailable metal studs,' used in the erection of interior parti- tions or walls, receive a surface of either gypsum board or rock lath on one side, and, where specified, metal lath on the other side, to which plaster may be applied. The work in dispute herein is the installation of the studs. The Basic Facts As previously indicated, Malawi is the general contractor for the con- struction of the Wade Park Hospital. In June 1961 Malan subcon- tracted to Berti the lathing, plastering, and accoustical title installa- tion work on this job, which included the erection, at the site, of all interior partitions of the Wade Park Hospital. The erection of interior partitions on this job includes the installa- tion of metal studs. The specifications permit either nailable or non- nailable metal studs. With the approval of the Veterans' Adminis- tration Berti choose to use Donn nailable metal studs. In the erection of the interior partitions, parallel metal tracks are installed in the floor and ceiling. The studs are then vertically attached to these tracks and channel iron strips are run horizontally through slots in the studs in parallel rows and tie-wired to each stud for bracing pur- poses. Metal lath and/or rock lath or gypsum board, as required in the building specifications, is then nailed to this framework, to which plaster finishing is applied where specified. Berti has not employed any carpenters for the job and has assigned all of the above-described work to lathers. Although Berti, as a member of a Detroit, Michigan, contractor's association, is party to a collective-bargaining agreement 8 The parties stipulated that Malan is engaged in commerce within the meaning of the Act. 4 "Donn" is a trade name for a type of naitable metal stud. CUYAHOGA, LAKE, ETC., COUNTIES DISTRICT COUNCIL 165 with the Carpenters District Council of Detroit, Wayne and Oakland Counties and Vicinity, which represents carpenters in that area, it is not a party to any collective-bargaining agreement with the Re- spondents in the Cleveland area, nor had it, at any time prior to August 1, 1962, been a party to any collective-bargaining agreement with Local 2." Berti began working at the Cleveland jobsite in December 1961. In January or February 1962 Saul Bernstine, carpenter steward at the jobsite and an employee of Malan, mentioned to Frank Nicolosi, Berti's agent and general manager in the Cleveland area, that the in- stallation of the studs belonged to carpenters. In late February or early March 1962 Berti received permission to use Donn nailable metal studs on the job and several weeks later assigned the installation thereof to his lather employees, who began to install them in early April. However, it was not until June 9, 1962, that Thomas Welo, business representative of Respondent Carpenters District Council, by telegram, requested Berti to assign the erection of Donn nailable metal studs to carpenters. Berti did not comply with this demand. Thereafter, the Respondents submitted their claim to the work to the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry, herein called the Joint Board. On or about June 21 Business Representative Welo, Nicolosi, and Berti's president, Berti, met to discuss their differences. Berti testi- fied that We] o said to him "if we didn't use carpenters, that they were going to put us off the job." On June 21 the Joint Board awarded the installation of the Donn nailable metal studs to the Respondents, and, by letter, dated June 23, 1962, notified Berti, Malan, the United Broth- erhood of Carpenters and Joiners, and the Wood, Wire and Metal Lathers International Union, of this decision. Berti did not comply with the decision of the Joint Board. On June 29 Berti, representatives of Malan, Local 2, and Respondents, in- cluding Welo, met to discuss the matter. At this meeting, although requested by Respondents to assign the particular work to carpenters, Berti refused, claiming his company was not bound by the award. Later in the day the carpenters at the jobsite walked off the job and some of them began picketing, carrying signs which read, "This con- tractor unfair." No designation of contractor or union was given. The Respondents do not deny that they called the carpenters off the job and authorized the picketing. The picketing ceased July 2, but the carpenters remained off the job until July 30 when they returned to work pursuant to the terms of a stipulation entered into on July 27 in settlement of a Section 10(1) injunction proceeding. Prior thereto, but several days after the carpenters walked off the job, Berti, at the 'On August 1, 1962, Berti and Local 2, as representative of Berti's lather employees, entered into a collective-bargaining contract. 166 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD request of Malan's vice president, took his lathers off the job. On July 30 the lathers also returned to work and resumed the installation of the nailable studs. Contentions of the Parties Malan takes no part in this dispute. Berti contends that it had not agreed to any voluntary method of adjustment of the dispute at the Wade Park Hospital job, that it has always assigned the disputed work to lathers who traditionally per- form such work, and that the assignment is consistent with industry and area practice, and economy and efficiency of operations. Respondents, asserting the right of carpenters to the work in dis- pute, contend that Berti had submitted to processes of the Joint Board which issued a decision in their favor; that their claim to this work is supported by custom and area practice, economy and safety, and Joint Board decisions in other cases. Local 2 claims Berti's assignment of the disputed work to lathers was proper. It contends Berti did not by contract or otherwise volun- tarily submit to the jurisdiction of the Joint Board; that the Joint Board award is not controlling; that Berti's assignment of the work in dispute fell within the coverage of Berti's contract with Malan (the plastering specifications specifically included the erection of metal studs) ; that the assignment is consistent with company, industry, and area practice and comparative training and efficiency of operation, is supported by basic craft jurisdiction agreements and decisions of record, and is borne out by the historical development of the work involved. Applicability of the Statute e The charges allege a violation of Section 8(b) (4) (D). The record shows, and it is undenied by Respondents, that on June 29, 1962, Re- spondents called the carpenters off the job and established a picket line at the jobsite because members of the Respondents were not erect- ing the Donn nailable metal studs. Although the picketing terminated July 2, 1962, the carpenters did not return to work until July 30, 1962, under the circumstances as described above. 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 Section 10(k) of the Act requires the Board to make an affirmative award of disputed work, after giving due consideration to various In their brief to the Board, Respondents moved to dismiss this proceeding because of the Joint Board award to 'them in June 1962 . For the reason appearing hereinafter, however, we cannot view the Joint Board proceeding as an agreed -upon method for the voluntary adjustment of the dispute , and Respondents ' motion is accordingly denied. CUYAHOGA, LAKE, -ETC., -COUNTIES DISTRICT COUNCIL 167 relevant factors. The following factors are asserted in support of the claims of the parties herein : (1) Historical development: The Charging Parties and Local 2 introduced testimony to show that metal studs in interior partitions were developed over 50 years ago as a replacement for masonry parti- tions, that lathers have traditionally installed the metal studs, and that installation of nailable metal studs is basically the same as any other type metal stud. (2) Efficiency of operation: The Respondents offered no evidence to show that special training was given its apprentices- in the disputed work, merely contending that carpenters were qualified to perform the work. Local 2, however, claims that lathers, because of their on-the- job training in this work during their 3-year apprenticeship, are better qualified. On the record as a whole, however, we are not persuaded that the ability of the lathers to perform this work is greater than that of the carpenters. However, before the stud is erected, parallel tracks are installed on the floor and ceiling. Then, a..metal shoe for the stud is wired to the ceiling track. After the stud is erected and fastened to the shoe, channel iron strips are installed horizontally through grooves in the studs and wired to each stud for bracing effect. The installation of the tracks and shoes and the insertion of the chan- nel iron strips by lathers is not questioned lie-rein.? To prevent damage to the installed tracks by other trades working in the area, it is neces- sary that the studs be installed immediately after the tracks are in- stalled. After the studs are installed, it is also necessary that the bracing channel irons be inserted to make the studding more rigid and less vulnerable to damage. The installation of floor and ceiling tracks, and studding and bracing, is more efficiently performed by one craft as a continuous operation. Berti's assignment of the disputed work to lathers is therefore consistent with efficiency of operation in the instal- lation of partitions. (3) Economy and safety: The record shows that the disputed work is performed in essentially the same manner, with virtually the same tools, and apparently with the same safety considerations, regardless of which craft performs the work. As set forth above, the erection of the studs is merely one step in the installation of the partition and can only be done after the floor and ceiling tracks are in place. Likewise, it is important that the Although the Respondents in their brief before the Board state that "wherever carpenters install nallable studs they also install the tracks," it is not clear, on the record as a whole, that they are claiming the installation of the tracks as well as the studs. See Local 964, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carleton Brothers Company), 141 NLRB 1138 where the Carpenters Union in a similar dispute with the Lathers Union claimed only the installation of nailable metal studs, and not the tracks as well. In any event they do not claim the installation of bracing material which is an integral part of the installation of the studs. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD studs be braced promptly after installation to lessen the danger of damage. Thus, it appears more economical for the same craft to per- form all these steps, rather than require members of one craft to stand by awaiting the completion of certain steps. (4) Company, area, and industry practice: Considerable testimony was taken as to the installation of nailable metal studs to receive other than dry wall materials on construction projects in the Cleveland area and throughout the country. Although we are not persuaded by this testimony that industry practice favors either disputant, it appears that area practice favors the lathers. Berti has employed only lathers in the past to perform similar work, and its assignment to the lathers herein therefore conforms to past company practice. 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 architect's opinion the work in dispute is customarily done by the lathing contractor.8 (5) Jurisdictional precedent: According to the basic jurisdiction grant in 1903 by the American Federation of Labor and its Building Trades Department, the Carpenters International Union has jurisdic- tion over woodwork, while the Lathers Union's jurisdiction covers light iron construction, furring and lath (wood, wire, and metal), for the purpose of holding plaster or like material. Local 2 contends that the Carpenters International Union, in a 1903 agreement with the Lathers Union, agreed that jurisdiction over iron studding belongs to lathers. Respondents, however, produced evidence to show that the Carpenters International Union never ratified the 1903 agreement, and that, in fact, it has always denied the validity of the alleged agree- ment. We are thus unable to give weight to this factor in determining the assignment of the work in dispute herein. (6) Decisions of the Joint Board: Both Local 2 and the Respond- ents introduced in evidence decisions by the Joint Board involving disputes concerning the proper assignment of the work of installing nailable metal studs. On the basis of these decisions, each Union con- tends that its members are entitled to perform the work in dispute. As we said in United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1622 (0. R. Karst), supra, "We do not believe that such decisions indicate more than that the instant dispute between the Unions is one of long standing and that neither Union has conceded to the other the right to perform the work in dispute." The same may be said in this case. Furthermore, since in the instant case all of the parties had not agreed to be bound by decisions of the 8 See United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local 1622 ( 0. R. Karst ), 139 NLRB 591. CUYAHOGA, LAKE, ETC., COUNTIES DISTRICT COUNCIL 169 Joint Board,° a decision by that body in the instant matter is merely one of the factors which we must consider in assigning the disputed work.lo Conclusion as to the Merits of the Dispute In International Association of Machinists, Lodge 1743 (J. A. Jones Construction Co.)," the Board set forth certain criteria to be con- sidered in assigning disputed work, and noted that each decision would be based upon commonsense experience, and the balancing of the rele- vant factors. Weighing the pertinent factors in this case, we believe that the lathers are entitled to the work in dispute. Such factors as that the work has been awarded to the lathers, that these employees are sufficiently skilled to perform the work and have performed it to the satisfaction of Berti, who desires to retain them on the job, that the assignment of the work not only conforms to Berti's past practice and area practice, but the comparative economy and efficiency of opera- tions, all indicate the superior claim of the lathers to the disputed work. We conclude, therefore, from the facts presented to us, that the assignment of the work in dispute by Berti to his lathers should not be disturbed.12 Accordingly, we shall determine the existing juris- dictional dispute by deciding that lathers, rather than carpenters, are entitled to the work in dispute. In making this determination, we are assigning the disputed work to the employees of Berti who are repre- sented by Local 2, but not to that Union or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in this proceeding, the Board makes the following determination of dis- pute, pursuant to Section 10(k) of the Act : 1. Lathers employed by Berti, who are represented by Local No. 2, Wood, Wire and Metal Lathers International Union, AFL-CIO, are entitled to perform the work of erecting Donn nailable metal studs used in the installation of interior partitions on the United States Veterans Hospital, Wade Park, Cleveland, Ohio. 2. Cuyahoga, Lake, Geauga and Ashtabula Counties District Coun- cil and Locals 11, 182, 105, 404, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are not entitled, by means pro- scribed by Section 8(b) (4) (D) of the Act, to force or require Berti to assign the above work to carpenters. e See Local 450, International Union of Operating Engineers (Sline.Industrial Painters), 119 NLRB 1725, 1732; and Local 178, Wood, Wire and Metal Lathers' International Union et at. (Newark & Essea Plastering Co.), 121 NLRB 1094, 1104. 1°Local 964, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carleton Brothers Coany), supra. n 135 NLRB 1402. 'Local 964, United Brotherhood of Carpenters ' and Joiners . of America, AFL-CIO, ( Carleton Brothers Company), supra. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Within 10 days from the date of this Decision and Determination of Dispute, Cuyahoga, Lake, Geauga and Ashtabula Counties District Council and Locals 11, 182, 105, 404, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, shall notify the Regional Director for the Eighth Region, in writing, whether or not it will re- frain from forcing or requiring Berti, by means proscribed by Sec- tion 8(b) (4) (D), to assign the work in dispute to carpenters rather than to lathers. Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local Union No. 327, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and S & W Construction Company of Tenn ., Inc. and Inter- national Brotherhood of Electrical Workers, AFL -CIO, Local Union No. 429 (George D. Edwards Electric Company, Inc. and Purvis Electric Company, a Joint Venture). Case No. 26-CD-11. April 22, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Re- lations Act, following the filing of charges under Section 8(b) (4) (D) of the Act. A hearing was held before Roger B. Holmes, hearing officer, on February 5 and 6, 1963. All parties who appeared at the hearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed.' Briefs were filed by all parties and have been duly considered. Upon the entire record in the case, the Board 2 makes the following findings : 1. S & W Construction Company of Tennessee, Inc., herein called S & W, is a Tennessee corporation engaged in building construction as a general contractor. George D. Edwards Electric Company, Inc., herein called Edwards, is a Tennessee corporation engaged in con- struction work as an electrical subcontractor. Harry Purvis, individu- ally, and d/b/a Purvis Electric Company, herein called Purvis, is also engaged in construction work as an electrical subcontractor. During the past 12 months each of the foregoing companies purchased and 'At the close of the hearing, the Teamsters moved "to dismiss this hearing" on the grounds that there is no showing that a jurisdictional dispute exists, there is no showing of a violation of Section 8(b) (4) (D ), and there is no evidence that the Teamsters induced a work stoppage in connection with the unloading of "ramming paste." For reasons stated infra the motion is denied. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its powers in connection with this case to a three-member , panel [ Chairman McCulloch and Members Rodgers and Leedom]. 142 NLRB No. 19.