United Brotherhood of Carpenters, Local 213

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By laying off or discharging Richard W. Johnson on October 22, 1963, the Respondent has not discriminated with reference to his tenure of employment in violation of Section 8(a)(3) and ( 1) of the Act. RECOMMENDED ORDER In view of my findings of fact, and conclusions of law, I recommend that an order be entered dismissing the complaint. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 213 and Mechanical Specialty, Inc. Case No. 23-CD-75. August 4, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the Act following a charge filed by Mechanical Specialty , Inc., herein called the Em- ployer, alleging that United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 213, herein called the Carpenters, had violated Section 8(b) (4) (D ) of the Act by engaging in conduct to force or require the Employer to assign certain disputed work to em- ployees represented by the Carpenters rather than to employees repre- sented by Local 18, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, herein called the Laborers. A hearing was held before Hearing Officer Paul L. Harper on May 12 and 13, 1964. 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 error and are hereby affirmed. Thereafter, briefs were filed by the Em- ployer and the Carpenters which have been duly considered. 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 [Members Leedom , Fanning, and Brown]. Upon the entire record in this proceeding, the Board makes the fol- lowing findings : 1. The business of the Employer Mechanical Specialty, Inc., a Texas corporation with its principal place of business in Houston, Texas, is engaged in the installation of laboratory fixtures and. equipment in hospitals, schools, and related institutions. During the year 1963, the Employer received revenue in excess of $50,000 for services it performed outside the State of Texas and received goods from outside the State valued in excess of $1 mil- lion. The parties agree, and we find, that the Employer is engaged in 148 NLRB No. 23. UNITED BROTHERHOOD OF CARPENTERS, LOCAL 213 193 commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved The Carpenters and the Laborers are labor organizations within the meaning of Section 2 (5) of the Act. 3. The work in dispute ; background facts The disputed work which gave rise to this proceeding, concerns the unloading and positioning of laboratory equipment at the St. Joseph's Hospital addition construction project in Houston, Texas. The Em- ployer assigned this work to employees classified as laborers who are represented by the Laborers; the Carpenters maintain that employees classified as carpenters are entitled to the work. The installation of the laboratory equipment is performed by carpenters employed by the Employer and this work is not in dispute. The Employer also em- ploys plumbers and electricians. As a specialty contractor engaged exclusively in the installation of laboratory equipment, which consists of floor and wall cabinets, sinks, reagent racks, fume hood superstructures, exhaust blowers, and elec- trical service fixtures, the Employer obtains subcontracts from manu- facturers of these products or from general contractors in the construc- tion industry. The laboratory equipment, wrapped in blankets or crated in pasteboard or wooden containers, is delivered to the Em- ployer at the jobsite by truck vans. To unload the equipment the Em- ployer employs from 5 to 10 laborers. They use a pocketknife or crowbar to uncrate the goods and then move the equipment, some- times with the use of dollies, to the room where the goods are to be installed. If the particular room is not ready, the goods are placed in another area at the jobsite until such room is available, at which time the laborers move the equipment into that room. After the ma- terials have been placed or positioned in the room, the carpenters in- stall the equipment to the floor and walls of the room, and the plumbers and electricians then hook up the fittings on the installed fixtures to the room's appropriate outlets. Although the Employer has no collective-bargaining agreement with any union, its laborers and carpenters are members of the Labor- ers and Carpenters, respectively. The laborers are paid at a lower hourly wage rate than the carpenters, which rates conform to those established by collective bargaining in the Houston area.' The record shows that the current collective-bargaining agreement between the I The Employer's bid for the St. Joseph ' s Hospital job contemplated the use of laborers for the disputed work 766-577-65-vol 148-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers and the Houston Chapter, Associated General Contractors of America, Inc., covers work which includes the conveying of mate- rials from ,a storage place to where mechanics are to use the materials. The existing agreement between the Carpenters and the Houston Chapter, AGC, does not contain any similar provision and the record further shows that the Carpenters, during recent negotiations with the AGC, failed to obtain a provision covering the disputed work herein. The Carpenters concedes that in April 1964, while the Employer was engaged on, the St. Joseph's Hospital project, it induced the Employer's employees to engage in a work stoppage and threatened the Employer with a strike, an object thereof being to force or require the Employer to assign the unloading and positioning of laboratory equipment to employees who are members of the Carpenters, rather than to laborers to whom the Employer had assigned the disputed work. Thereafter, the Employer filed the instant charge. Applicability of the Statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8(b) (4) (D) of the Act. The Regional Director was satisfied upon the basis of such investigation that there was reasonable cause to believe that a violation had been committed and directed that a hearing be held in accordance with Section 10 (k) of the Act. On the basis of the entire record, including the Carpen- ters' inducement of the Employer 's employees to strike and ' its threat of a strike against the Employer unless the disputed work was assigned to its members, we find that there is reasonable cause to believe that a violation of the Act has occurred and that the dispute is properly before the Board for determination. 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 relevant factors and the Board has held that its determination in jurisdictional dispute cases is an act of judgment based upon common- sense and experience in balancing such factors.' Certain of the usual factors considered by the Board in these cases, such as certifications , contracts, and skills, provide little , if any, basis for determining the instant dispute. For neither the Carpenters nor the Laborers has been certified by the Board as the exclusive bargain- ing representative for any of the Employer's employees . Nor does either union have a, collective -bargaining contract with the Employer. 2InternationaZ Association of Mach2nast8, Lodge No . 1743, AFL-CIO (J. A. Jones con. 8truction Company ), 135 NLRB 1402. UNITED BROTHERHOOD OF CARPENTERS, LOCAL 213 195 And the requisite skill to perform the unloading and positioning of laboratory equipment is the use of "muscle" or "a strong back," pos- sessed by members of both unions. _ Other factors urged for considera- tion are : Employer and area custom: The Employer is satisfied with having its laborers perform the disputed work and has customarily assigned this work to such employees. The Carpenters' main claim to the dis- puted work is based upon an asserted custom in the Houston area. It presented evidence which shows that carpenters have performed un- loading and positioning work in connection with the installation of various store fixtures, as well as some laboratory equipment, and that the work involved in this case is not substantially different. However, the Employer presented evidence that laborers in the area have also performed this work on a variety of equipment. As noted, the collec- tive-bargaining history in the area between the Laborers and Houston Chapter, AGC, favors the Employer's present assignment. Efficiency and economy of operations : The record shows that equip- ment is sometimes delivered to the jobsite before the room in which it is to be installed is ready to receive the equipment. On such occasion, the Employer's laborers are more readily available than the carpenters to unload and position the goods in a temporary storage area until the room is completed . Although both carpenters and laborers are capa- ble of performing the disputed work, it appears that the Employer's carpenters have been reluctant to engage in the heavy lifting of equip- ment. Further, the carpenters' craft skills are not required to per- form this disputed work and, as previously noted, the laborers' rate of pay is less than that of the carpenters. CONCLUSION Upon consideration of all pertinent factors in the entire record, we shall not disturb the Employer's assignment of the disputed work to its laborers. The Employer is satisfied with the results achieved by its assignment and desires no change in its practice. Its assignment to the laborers promotes efficiency and economy of operation. Accord- ingly, we-shall determine the existing' jurisdictional dispute by decid- ing that ,the laborers, represented by'the Laborers, rather than the carpenters, represented by the Carpenters, are entitled to the work of unloading and positioning of laboratory equipment. In making this determination, we are awarding the work in question to employees represented by the Laborers, but not to the Laborers or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding. 196 DECISIONS OF NATIONAL LABOR "RELATIONS BOARD 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. Laborers employed by Mechanical Specialty, Inc., who are repre- sented by Local 18, International Hod Carriers, Building and Com- mon Laborers Union of America, AFL-CIO, are entitled to perform the unloading and positioning of laboratory equipment for their Employer. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 213, is not entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require the Employer to assign the above work to carpenters who are represented by the Carpenters. 3. Within 10 days from the date of this Decision and Determina- tion, the Carpenters shall notify the Regional Director for Region 23, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute to carpenters rather than to laborers. Kamp Togs, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Case No. 14-CA-3167. August 5, 196.E DECISION AND ORDER On May 12, 1964, Trial Examiner James F. Foley issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed a bill of exceptions and assign- ment of error to the Trial Examiner's Decision, and the General Counsel filed a brief in answer. 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 Fanning and Jenkins]. 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 Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 148 NLRB No. 21.