Local 1905, Carpet, Linoleum & Soft Tile Layers

LOCAL 1905, CARPET, LINOLEUM & SOFT TILE LAYERS 251 opportunity to campaign. And, in any event, the Employer did know of the nature of the meeting when Petitioner requested a similar op- portunity. Finally, the very fact that the Employer had relatively few employees indicates to us that all the employees would be fully aware of the favored treatment, and we are also satisfied that the granting of permission to the Petitioner to hold a meeting in the plant during nonworking time would not have disrupted plant operations. The Employer's refusal to grant the Petitioner's request, after per- mitting the Intervenor the privilege of holding its meeting, created a glaring imbalance in opportunities for electioneering. Having made its facilities available to the Intervenor, the Employer, in our opinion, was under an obligation to grant the Petitioner the right to address the employees under similar circumstances. We would, there- fore, set aside the election and direct that a new election be conducted. Local 1905, Carpet, Linoleum & Soft Tile Layers [James D. Gib- son and Earl P. Bigham, d/b/a Southwestern Floor Co., a part- nership] and Butcher & Sweeney Construction Co., Inc. Local 1905, Carpet, Linoleum & Soft Tile Layers [Builders Serv- ice Co., Inc.] and Cain & Cain, Inc. and Fort Worth Chapter, Associated General Contractors. Cases Nos. 16-CD-17, 16-CD- 18, and 16-CD-19. June 27, 1963 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act following the filing of charges under Section 8(b) (4) (D) of the Act. A hearing was held before T. Lowry Whit- taker, hearing officer, on January 31, February 1, 11, 20, 21, and 25, 1963. All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing of- ficer made at the hearing are free from prejudicial error and are here- by affirmed. Briefs filed by the Employers, the Carpenters, and the Painters have been duly considered.' Upon the entire record in these cases, the Board 2 makes the follow- ing findings : 1. As stipulated by the parties, Butcher & Sweeney Construction Co., Inc. (hereinafter referred to as Butcher & Sweeney), Cain & The request for oral argument made by Respondent, Local 1905, Carpet, Linoleum & Soft Tile Layers, is hereby denied, as the record and briefs adequately present the issues and the positions of the parties. 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [ Chairman McCulloch and Members Fanning and Brown]. 143 NLRB No. 39. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cain, Inc., and Thos. S. Byrne, Inc., are each separately engaged in the business of general contracting in the State of Texas. In the 12- month period ending January 31, 1963, Butcher & Sweeney received goods and materials valued in excess of $50,000 directly from outside the State of Texas. During the calendar year 1962, Cain & Cain, Inc., and Thos. S. Byrne, Inc., received goods and materials valued in ex- cess of $100,000 directly from outside the State of Texas. We find that each of the above general contractors is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The parties further stipulated, and we find, that Local 1905, Carpet, Linoleum & Soft Tile Layers, affiliated with the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (hereinafter referred to as the Painters), and Local 1822, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (here- inafter referred to as the Carpenters), are labor organizations within the meaning of Section 2 (5) of the Act. 3. The dispute : A. Background The Carpenters and the Painters have since at least July 6, 1942, been members of the Building and Construction Trades Department, AFL-CIO, and by virtue of this membership have been bound by the Department's plan for the settlement of jurisdictional disputes. On July 6, 1942, pursuant to procedures then in effect, a decision com- monly known and referred to as the "Peter Eller" decision was issued with respect to a dispute between the Carpenters, Painters, and sev- eral other unions over the laying of floor tile and linoleum. The decision divided the jurisdiction of the work in question between the Carpenters and the Painters, the former being granted all the ter- ritory east of Kansas City, Missouri, and the latter being granted Kansas City and all territory to the west. Fort Worth, site of the present disputes, is west of Kansas City. Although it appears that the Carpenters and the Painters there- after generally abided by the Eller decision, it further appears that there was very little resilient floor laying work to be done in the Fort Worth area, and that until recently the Painters did not police the award of such work. Thus, for approximately 20 years following the "Peter Eller" decision, the tile-laying work was done by either Car- penters, Painters, or nonunion employees, depending on who the par- ticular contractor happened to be. During the mid-1950's, however, the use of resilient tile for floors became more popular, and the de- mand for it steadily increased. This precipitated a series of jurisdic- tional disputes between the Carpenters and Painters over the laying of various types of floor covering. However, it is clear that the National Joint Board for the Settlement of Jurisdictional Disputes LOCAL 1905, CARPET, LINOLEUM & SOFT TILE LAYERS 253 adhered to the Eller decision and regularly awarded the work to the Painters whenever it was called on to resolve the disputes and the situs of the work was west of Kansas City. Because of the recurring disputes, Carpenters Local 1822 and Painters Local 318 (the prede- cessor of Local 1905 as to the particular work in question) entered into an agreement on August 23, 1961, in which Local 1822 agreed both to abide by the "Peter Eller" decision and to claim no jurisdic- tion in the laying of resilient floor covering in Fort Worth. However, because the geographical area of Local 318's jurisdiction was too large to enable it to police effectively the assignment of floor-covering work in Fort Worth, Painters Local 1905 was chartered in November 1962 to represent the Fort Worth area exclusively. The disputes in ques- tion arose shortly thereafter. B. The facts Butcher & Sweeney was the general contractor on the county jail job, and originally subcontracted the laying of resilient floor tile to one Campbell. When Campbell died, his superintendent, James D. Gibson, formed a partnership with Earl P. Bigham, Southwestern Floor Co. (herein called Southwestern), and this subcontract is one of the assets they acquired. Builders Service Co., Inc. (hereinafter referred to as Builders Service), was the subcontractor installing flooring at both the Harris Hospital and Neiman-Marcus jobs. Cain & Cain, Inc., was the general contractor on the former and Thos. S. Byrne, Inc., was the general contractor on the latter. As superintendent for Campbell, James Gibson had been aware of the Painters' claim to resilient floor laying, although he testified that he could not remember actually seeing a letter from Painters Local 318 to Campbell, dated November 8, 1961, in which the Painters made reference to the "Peter Eller" decision and stated its determination to enforce its jurisdiction in the linoleum and soft tile laying fields. Gibson also was aware of the jurisdictional dispute with respect to the laying of tile on the First National Bank Building in Fort Worth, which was settled by an award of the National Joint Board to the Painters on November 14, 1960. Nevertheless, in August 1962, based on economic considerations, Southwestern wrote a letter to Carpenters Local 1822 signifying its intention to employ carpenters in the future for floor-laying jobs. Early in November 1962, Southwestern became an associate member of the Associated General Contractors (herein- after referred to as AGO) and attempted, on the County Jail job which it began about the same time, to follow the wage rates set out in the contract between the AGC and Local 1822 3 3 As an associate member of the AGC, Southwestern was bound neither by Joint Board procedure nor by any contracts negotiated by AGC. Special authorization was required by the AGC before it undertook to bind any of its members or associate members. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the middle of November and on several occasions in December, Don Hanson, the business representative of Local 1905, approached Gibson at the jail job and asked him to sign a contract with the Painters. Gibson refused. On December 6, Local 1905 picketed the jail job, and again on various dates until December 17.4 As a result secondary employees whose unions were members of the Fort Worth Building & Construction Trades Council left the job. As stated above, Builders Service was the subcontractor on both the Harris Hospital and Neiman-Marcus jobs. Builders Service is also an associate member of AGC, has no labor contracts, and has not authorized AGC to bargain for it. On November 8, 1961, Builders Service received a copy of the letter sent out by Painters Local 318 to the various floor tile subcontractors asserting its jurisdiction under the "Peter Eller" award and stating that it would henceforth enforce its claim to the work. However, on November 21, 1962, for economic reasons similar to those of Southwestern's, Builders Service advised Carpenters Local 1822 that it intended to use carpenters to install resilient floor covering in the future. In the middle of December 1962, Business Agent Hanson of Painters Local 1905 told President Robert Hebert of Builders Service that he wanted to discuss the signing of a contract concerning the Neiman- Marcus job. At the same time, Hanson threatened to picket the Harris Hospital job if painters did not get the tile-laying work. Clayton Buckelew, a foreman for Builders Service, testified that Hanson had approached him on the Neiman-Marcus job and threat- ened to picket it if Buckelew used nonpainter employees to lay the tile. Hanson denies that he threatened to picket the Neiman-Marcus job. The Harris Hospital job was picketed by Local 1905 on Janu- ary 3, 4, 5, 6, 7, and 8, 1963, the picket sign being identical to that used on the County Jail job with the exception that the Builders Service name was substituted for that of Southwestern Floor Co.' C. Contentions of the parties The Employers 6 contend that they are bound neither by any de- cisions of the National Joint Board for the Settlement of Jurisdic- tional Disputes nor by the agreement between Painters Local 318 and Carpenters Local 1822, dated August 23 and November 2, 1961, in which the Carpenters disclaimed jurisdiction over the laying of re- silient floor covering in Fort Worth. The Employers further contend that they have assigned the work to the Carpenters on the basis of their 'The picket sign read : "Southwestern Floor Company is unfair. Have not signed a collective bargaining agreement with Carpet, Linoleum & Soft Tile Layers, Local 1905. We are picketing against Southwestern Floor Company only." See footnote 4. e The term "Employers," when used herein, refers to the subcontractors , Southwestern Floor Co. and Builders Service Co., Inc. LOCAL 1905, CARPET, LINOLEUM & SOFT TILE LAYERS 255 own and industry practice, the skills and work involved, and the economy and efficiency of their operations. The Carpenters asserts that no jurisdictional dispute within the meaning of Section 10(k) of the Act exists inasmuch as it does not claim jurisdiction over the work in dispute. The Painters contends that there is no jurisdictional dispute for the reason that the work is not claimed by the Carpenters. Alterna- tively, it contends that it is entitled to the work on the basis of awards by the National Joint Board, area practice, skills and nature of the work involved, and an agreement between the unions concerned. D. Applicability of the statute On August 23, 1961, in an agreement between the Carpenters and Painters Local 318, Carpenters Local 1822 agreed to abide by the "Peter Eller" decision and to claim no jurisdiction in the laying of resilient floor covering in Fort Worth. On January 29, 1963, 2 days before the start of the hearing in these cases , the president of the International Carpenters Union informed the Board that there was no dispute involving the Carpenters and reaffirmed his union 's inten- tion to be bound by the "Peter Eller" decision. On January 31, 1963, the International Carpenters Union instructed Local 1822 to cease its participation in the 10 (k) hearing and to abide by the "Peter Eller" decision, and on the same day the officers of Local 1822 voted to dismiss the local's attorney and withdraw from the case , which they did. The business agent of Local 1822 repeatedly testified that his local has never claimed jurisdiction over the laying of resilient floor cover- ing in the area and does not claim it now. Finally, the brief submitted to the Board on behalf of the International Carpenters Union and Local 1822 again acknowledges the continued existence and effective- ness of the "Peter Eller" decision and restated the position that the work in dispute is not within the Carpenters ' jurisdiction in the geographical area where the dispute arose. We take this to mean, in the circumstances, that the employees represented by the Carpenters have withdrawn and no longer are either performing or seeking to perform the particular work under consideration here. The Board has noted on previous occasions 7 that implicit in the thrust of the Supreme Court's decision in the CBS case 8 is the proposi- tion that Sections 8 (b) (4) (D ) and 10 (k) were limited to situations in- volving competing claims between rival groups of employees , and were 'Highway Truckdravers d Helpers, Local 107 International Brotherhood of Teamsters, etc (Safeway Stores, Incorporated ), 134 NLRB 1320 ; Sheet Metal Workers International Association, Local Union No. 272 ( Valley Sheet Metal Company ), 136 NLRB 1402, Wood, Wire & Metal Lathers International Union, Local No. 328, AFL-CIO (Acoustics & Specialties, Inc ), 139 NLRB 598 8 N L R B v. Radio and Television Broadcast Engineers Union, Local 1212 ( Columbia Broadcasting System ), 364 U.S 573 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not designed to require the Board to arbitrate a dispute between a union and an employer when no such competing claims are involved. At present, there are no such competing claims here. Accordingly, we find, on the entire record, that the facts herein do not present a jurisdictional dispute within the meaning of Section 8(b) (4) (D) and 10(k) of the Act. We shall therefore quash the notice of hearing. ORDER [The Board quashed the notice of hearing.] Raley's Inc. d/b/a Raley's Supermarkets and Building Service Employees International Union 22, AFL-CIO, Petitioner. .Case No. 20-RC-5262. June 27, 1963 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before M. C. Dempster, hearing officer. The hearing officer's rulings made at the hearing are free .from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization 1 involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act for the following reasons: The Petitioner seeks a unit of 14 janitors and 3 bottle sorters em- ployed at the Employer's 12 retail food stores located in the Sacra- mento, California, metropolitan area. The janitors mop and sweep the floors, clean the glass doors, and carry refuse to a disposal point outside the stores. They work an 8-hour day but begin about 3 hours before the clerks do. The bottle sorters sort empty bottles in sheds outside the stores. Other employees of the Employer have been rep- resented by the Intervenor for more than 20 years on a multiemployer basis with retail store employees of a number of other employers in the area. With respect to these employees, bargaining is conducted through the Sacramento Valley Employers' Council, herein called the Council, and the Council and the Intervenor are currently parties to 1 Rc+tail Clerks Union, Local No. 588, A.F.L.-C.I.O, hereinafter referred to as the Inter- venor, was allowed to intervene at the hearing on the basis of a contractual interest. 143 NLRB No. 40.