Bricklayers & Masons Int'l Union, Local 3, Etc.

BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1279 not represent a majority of Respondent's employees when it requested recognition and that Respondent, when it then refused to recognize the Union, did not violate Section 8(a)(5) of the Act. Cf. Gorbea, Perez & Morell, S. en C., 133 NLRB 362, 369-374. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCL The activities of the Respondent set forth in section III, above , occur i ing in connection with the operations of the Respondent described in section 1, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that Respondent violated Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and lake certain affirmative action designed to effectuate the policies of the Act. In view of the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Boot and Shoe Workers' Union, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 2. Cumberland Shoe Corporation is engaged in and at all times material herein has engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights garanteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair practices prescribed by Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. By refusing to bargain with the Union on and after January 23, 1963, Re- spondent has not engaged in and is not engaging in unfair labor practices proscribed by Section 8 (a) (5) of the Act. (Recommended order omitted from publication.] Bricklayers and Masons International Union, Local No. 3, and C. M. Fish, Its Agent and Engineered Building Specialties, Inc. United Brotherhood of Carpenters and Joiners of America, Local No. 98, and Tom Severn, Its Agent and Engineered Building Specialties, Inc. Cases Nos. 19-CD-79 and 19-CD-79-2. Octo- ber 29, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the Act, follow- ing charges filed by Engineered Building Specialties, Inc., herein called the Employer, alleging that Bricklayers and Masons Interna- tional Union, Local No. 3,,and C. M. Fish, its agent, herein called Bricklayers, and United Brotherhood of Carpenters and Joiners of America, Local No. 98, and Tom Severn, its agent, herein called Carpenters, had each respectively violated Section 8(b) (4) (D) of the Act. Pursuant to notice, a hearing was held on May 21, 1963,, at Spokane, Washington, before Hearing Officer Patrick H. 'Walker. 144 NLRB No. 119. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 prejudical error and are hereby affirmed. Upon the entire record in this proceeding, the Board 1 makes the following findings : 1. The business of the Employer The Employer, a Washington corporation with its principal place of business in Spokane, Washington, is engaged in specialty construc- tion as a subcontractor. During the last fiscal year, it caused to be shipped to it from outside the State of Washington, building materials valued at approximately $80,000. During the same period, the Em- ployer received approximately $233,000 as income for work performed as a subcontractor in the States of Washington, Idaho, and Montana. We find that the Employer is engaged in commerce within the mean- ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved The Bricklayers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. 3. The dispute A. The basic dispute The instant dispute arose over the assignment of certain caulking work performed by the Employer on a school project in Hunter, Washington. Under a subcontract from P & B Construction Com- pany, Inc., the Employer agreed to perform work on the Hunter school project consisting of the installation of aluminum and steel windows, aluminum entrances, sliding doors, and caulking of the entire building. The Employer'began work on the school project in March 1963,2 at which time it.assigned all the caulking work to employee Raymond Retzel. At the, outset, Retzel, who did not belong to any labor organization, was the only employee engaged in caulking work. On March 28 Tom Severn, an agent of the Carpenters, visited the project and observed Retzel caulking window installations. Severn asked Retzel what union he belonged to and when Retzel replied that 'Pursuant to the ' provisions of Section 3(b) of the Act, the Board has delegated Its powers In connection with .these cases to a three-member panel [Members Leedom, Fanning, and Brown]. 2 Unless otherwise Indicated, all events occurred in 1963. BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1281 he was not a union member, Severn informed him that this work would have to be done by a member of the Carpenters. On the follow- ing day, Retzel made application for membership in the Carpenters Union and was accepted. On April 1 or 2, Charles Fish, an agent of Bricklayers, spoke to Retzel on the jobsite and informed him that the caulking of window installations would have to be done by a member of the Bricklayers. Thereafter on April 5, the Bricklayers and Carpenters, through their International representatives, agreed that the remianing caulking work on the window installations should be divided equally among the members of each Union, on a 50-50 basis. When the Employer was notified of this agreement, he refused to accept this disposition of the dispute. Nevertheless, on April 9 the Employer assigned a second employee, James Christie, to work with Retzel in performing caulking work. On April 10 Fish of the Brick- layers observed Christie working on the job and asked him if he be- longed to a union. When Christie replied in the negative, Fish in- formed employees that the job would be picketed. Picketing com- menced at noon on April 10 with Fish carrying a sign bearing the legend : "Engineered Specialties Co. unfair to Bricklayers Local No. 3. Misassignment of work." As a result of the picketing, all craft employees of the Employer and the general contractor left the job. The employees returned to the jobsite on April 15, but when the Brick- layers learned that the employees of the Employer were back on the job, picketing was resumed and the craft employees ceased work until the Employer's employees left the job. Approximately a week later, employee Christie became a member of Bricklayers' Union and the Employer has continued its work on the project without further incident. B. Contentions of the parties No party denies that the instant controversy arose out of a juris- dictional dispute. However, both the Carpenters and the Bricklayers seemingly take the position that the dispute has been resolved by their agreement of April 5 and, therefore, that the Board should treat this agreement as a voluntary settlement of the dispute. The Em- ployer contends that the dispute cannot be considered resolved inas- much as the settlement entered into by Carpenters and Bricklayers was without its approval. C. Applicability of the statute Before the Board proceeds with a determination of dispute pursuant 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. As set forth in section A, above, there does not appear to be sufficient evi- 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dance to establish reasonable cause for believing that Respondent Carpenters violated Section 8 (b) (4) (D ) of the Act. However, there is uncontroverted evidence that Respondent Bricklayers picketed the school project for the purpose of forcing the Employer to reassign part of the the caulking work to members of its union. This conduct by Respondent Bricklayers is sufficient to establish reasonable cause for believing that a violation of Section 8(b) (4) (D ) of the Act has occurred . In such circumstances , we are required to proceed to a determination of the dispute.' However, Carpenters and Bricklayers contend that the dispute has been resolved by their agreement of April 5, and that the Board should accept this settlement as dispositive of the issue. We do not agree. While it is true the Employer is presently operating under the terms of the April 5 agreement, it is clear that the Employer has been forced to comply with the agree- ment in order to avoid further Section 8 (b) (4) (D) violations by Respondent Bricklayers . At no time was the Employer a party to the April 5 agreement, and in fact it did and still does protest the Unions' asserted disposition of the dispute. Hence, it cannot be said that all parties have entered into a voluntary settlement of the dispute. Therefore, as we find the dispute was not resolved by the April 5 agreement between Carpenters and Bricklayers , we shall proceed to a determination of the merits of the dispute. 4. The merits of the dispute The work in dispute consists of the caulking of window installations at the school project. Caulking work is performed with a Thiokol mixture, which consists of a base substance mixed at the jobsite with a catalytic agent and applied to the structure by means of a pressure gun. Although both the Carpenters and the Bricklayers would have the Board award the disputed work equally to the members of their respective Unions, it is apparent that such a division of the work would be arbitrary in nature, rather than based upon legitimate juris- dictional claims. In our view, we would not be meeting our responsi- bilities under the Act if we were to accept such an arbitrary division of the work as the basis for our award. Rather, we see our duty as one requiring us to make our determination based upon an evaluation of the evidence supporting the respective claims. The merits of these respective claims can, we think, be best established by weighing the following factors : 4 'N L.R.B. v. Radio & Television Broadcast Engineers' Union, Local $ 12, etc ( Columbia Broadcasting System ), 364 U.S. 573. 'Certain factors normally considered by the Board in making jurisdictional awards are not present in this proceeding. These would include Board certifications , awards by joint boards, and industry and area practices. BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1283 A. The skills involved The record evidence establishes that an individual would require several months' training before he would be sufficiently experienced in the use of the Thiokol compound to perform all aspects of the caulk- ing operation without supervision. In most instances, the Employer makes it a practice to assign all of the caulking work to one employee. Both the Carpenters and the Bricklayers allege that members of their respective Unions are trained in caulking work. However, the record is vague as to whether, by reason of training, these members would be qualified to perform all of the various caulking operations required on this job. With respect to the two employees presently performing the work in dispute, the record, shows that employee Retzel, who is a carpenter by trade, is fully qualified to perform all aspects of the caulking operation, but that employee Christie, who was formerly a laborer, is less experienced and works under Retzel's supervision. Therefore, as Retzel, who is a member of the Carpenters Union, is the only employee who on the basis of the record possesses all the requisite skills necessary, we find this factor to favor the claim of the Carpenters. B. Collective-bargaining agreements Currently in existence are short-form agreements between the Em- ployer and the Carpenters and the Bricklayers, respectively. Under the terms of these agreements, the Employer agrees to be further bound by the agreements in existence between the Carpenters and the Bricklayers and Eastern Washington Builders Chapter of the Asso- ciated General Contractors of America, Inc. Neither the Carpenters nor the Bricklayers has been able to point to any provision in these agreements which would, support its respective claim to the disputed work. Nor has our examination of these agreements uncovered any evidence which would support either claim. Hence, we conclude that the collective-bargaining agreements favor neither Union's claim. C. Employer's assignment and past practices The Employer employs individuals in the classifications of carpen- ters, glaziers, and laborers. Since 1958, the Employer has performed caulking work on 60 jobs, and in all but 1 instance the work has been performed by a carpenter. The sole exception involved work on a church- project in 1960, and in that instance the caulking work was jointly assigned to a carpenter and a brick mason. Consistent with this practice, the Employer first assigned the disputed work to Retzel, a carpenter by trade, who is now a member of the Carpenters Union. While it is true the Employer presently has a member of the Car- penters and of the Bricklayers performing the caulking work, the record is clear that the Employer contemplated assigning the work to 727-083-64-vol. 141-52 1284 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD only one employee. Hence, we believe that, under these circumstances, more weight should be given to the Employer's initial assignment. Accordingly, we find the Employer's assignment and past practices to favor the claim of the Carpenters. D. Economy of operation The record establishes that it is customary for all the caulking work to be assigned to one individual. Based upon the record before us, the only employee who possesses all the requisite skills to perform all of the disputed work is employee Retzel, who is a member of Carpen- ters Union. Hence, as the only individual clearly qualified is a member of the Carpenters, we conclude that this factor favors the Carpenters' claim. Conclusions as to the Merits of the Dispute On the basis of the evidence set forth under the above-enumerated factors, we conclude that carpenters are entitled to the disputed work herein. Accordingly, we shall determine the existing jurisdictional dispute by deciding that the carpenter represented by the Carpenters Union, rather than the caulker represented by the Bricklayers Union, is entitled to the work in question. In making this determination, we are assigning the disputed work to the carpenter who is repre- sented by the Carpenters Union, but not to Carpenters Union or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in these cases, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act. 1. The carpenter who is represented by United Brotherhood of Carpenters and Joiners of America, Local No. 98, is entitled to per- form all the caulking work on window installations at the Hunter, Washington, school project. 2. Bricklayers and Masons International Union, Local No. 3, and C. M. Fish, its agent, is not and has not been lawfully entitled to force or require Engineered Building Specialties, Inc., to assign the above work to employees represented by Bricklayers and Masons International Union, Local No. 3. 3. Within 10 days from the date of this Decision and Determination of Dispute, Bricklayers and, Masons International Union, Local No. 3, and C. M. Fish, its agent, shall notify the Regional Director for the Nineteenth Region, in writing, whether or not it will refrain from forcing or requiring Engineered Building Specialties, Inc., by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to members of their Union, rather than to carpenters.