Carpenters Union Local 701

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Union Local 701, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; Sequoia District Council of Carpenters , United Brotherhood of Carpenters & Joiners of America, AFL-CIO' and Pierce Lathing Company2 and Wood, Wire and Metal Lathers International Union, Local 83, AFL-CIO .3 Case 20-CD-292 June 30, 1970 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed on February 5, 1970," by the Em- ployer, alleging that the Carpenters violated Sec- tion 8(b)(4)(D) of the Act by engaging in picketing with an object of forcing or requiring the Employer to assign certain work to employees represented by the Carpenters, rather than to employees represented by the Lathers. Pursuant to a notice, a hearing was held before Hearing Officer Morton H. Orenstein on April 9 and 10. Contrary to the contention of the Carpen- ters, all parties appearing were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues . The rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Carpenters, the Lathers, and the Employer and have been duly considered by the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Pierce Lathing Company is a California corpora- tion with its main office located in Fresno, Califor- nia. It is engaged in lathing, plastering, and drywall finishing in the building and construction industry in California and other States. During the last calendar year, the Employer's volume of business was approximately $6 million and its purchases of Herein called Carpenters. ' Herein called Employer goods and materials from outside the State of California were in excess of $50,000. We find that the Employer is engaged in com- merce 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. II. THE LABOR ORGANIZATIONS INVOLVED We find that the Carpenters and the Lathers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Facts The Employer in late 1969 or early 1970 was awarded subcontracts for the following work in connection with the construction of the Weinstock department store in Fresno, California: Installation of a suspended ceiling system and erection of studs to be used for a plaster or drywall finish. On January 5, 1970, the Employer commenced work at the construction site and assigned the foregoing tasks to its employees who were members of the Lathers. On January 15, the general contrac- tor, Johnson & Mapes Construction Company, called a meeting attended by Jack Devlin and Mel Ward for the contractor, Kenneth L. Matson for the Employer, Larry Null for the Carpenters, and Robert Dunbar for the Lathers. Null contended that the work on the metal stud drywall framing should be assigned to carpenters. When Matson stated that the work had been assigned to lathers, Null replied, "I hope you'll find something to hang [the studs] from." On February 3, Null and another representative of the Carpenters picketed the jobsite with signs reading, "Pierce Lathing Company Violates Drywall Contract." A work stoppage ensued from 8 a.m. to about 10:15 a.m., at which time the picket- ing was discontinued upon the Employer's promise to discuss the matter with the Carpenters on February 5. At that meeting, the Carpenters renewed its claim and asked the Employer to sign a drywall agreement so that employees represented by the Carpenters could be hired to do the disputed work. The Employer thereupon refused to comply with these requests. Toward the close of the hearing on April 10, the Carpenters announced that on that day a copy of a settlement agreement, which had been proposed by ' Herein called Lathers Unless otherwise specified , all dates below are for 1970 184 NLRB -No. 37 CARPENTERS UNION LOCAL 701 349 the Regional Director prior to the hearing, was, after being altered in one respect by the Carpen- ters,5 signed by representatives of the Carpenters and sent to the Regional Director. The Employer and the Lathers then stated that they had not reached any agreement or adjustment with the Car- penters concerning the disputed work. B. Contentions of the Parties The Lathers and the Employer contend that the assignment of the disputed work to lathers was war- ranted by their collective-bargaining agreement, company and area practice, the special skills of the lathers, and the efficiency resulting from the em- ployment of only lathers. The Carpenters refers to its statement on April 10 that a hearing was unnecessary because the dispute had been resolved by the settlement agree- ment. The Carpenters now requests the Board to approve the said settlement agreement. Alternative- ly, the Carpenters, which argues that the record is incomplete, asks that the hearing be reopened to allow witnesses to testify as to "the status quo agreement between the two International Unions, which has a central bearing on this case." However, if the Board concludes that the lathers are entitled to the disputed work, the Carpenters wishes the Board to restrict its determination to the "in- dividual job and the individual contractor" involved herein. giving due consideration to various relevant factors. The following are the factors relied on by the parties to the dispute in support of their respective claims: 1. Collective-bargaining contracts The Employer is a party to a collective-bargain- ing agreement between the Lathers and the Master Plasterers & Lathers Association of Fresno, Tulare, Kings, and Madera Counties. The agreement covers, inter alia, the installation and erection of light iron construction and metal studs which are to receive a drywall finish. The Employer has no current agreement with the Carpenters and has never employed carpenters to do work similar to that which is in dispute. How- ever, the Employer from 1965 to July 31, 1968, was party to a drywall contract with the Carpenters under which it employed during that period two carpenters for the limited purpose of setting door frames. 2. Company, area, and industry practice The Employer has always used lathers exclusively for installation of ceiling systems and erection of metal studs. The record also shows that in the counties of Fresno, Kings, Tulare, and Madera about 85 to 90 percent of the work is performed by lathers. C. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is a reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. The record shows that on February 3 the Carpenters picketed the jobsite because the disputed work had not been assigned to carpenters. The record also shows that a work stop- page took place at that time at the jobsite. Ac- cordingly, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after 3. Employee skills and efficiency of operation The lathers employed by the Employer are spe- cially trained and are more skilled than carpenters in working with metal and using metal cutting tools. As lathers also perform tasks other than those in question , assignment of the disputed work to car- penters would be inefficient and uneconomical because it would necessitate the replacement of one steady crew of lathers by separate crews of lathers and carpenters with intermittent and insuffi- cient work for each. 4. Union decisions and agreements The Lathers cites the following in support of its claim: An agreement of January 14, 1903, between its International and that of the Carpenters provides that the Carpenters will not assert jurisdiction over iron "studding," and the Lathers will not assert ju- risdiction over wood work. A panel headed by John 5 The change restricted the Lathers obligation to refrain from proscribed activity to individuals employed by the general contractor and the Em- ployer. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T. Dunlop on January 15, 1968, awarded to the Lathers work involving ceiling systems. The Carpenters offered no precedent at the hear- ing in support of its claim . However, as indicated above, the Carpenters in its brief requests the Board to reopen the hearing to allow it to present evidence on the status quo agreement between the Internationals of the Carpenters and the Lathers. Assuming, without finding, that the said agreement favors the claim of the Carpenters," we conclude that the foregoing evidence offered by the Lathers and Carpenters furnishes no controlling basis for resolving the conflicting claims in the instant case.7 CONCLUSIONS AT TO THE MERITS OF THE DISPUTE" Upon consideration of all the pertinent factors in this case, we shall assign the disputed work to the lathers. In so doing, we give weight to the Em- ployer's as well as area practice, the Employer's collective-bargaining agreement with the Lathers, the special skills of the lathers, and the efficiency and economy resulting from the Employer's exclu- sive use of the lathers. We therefore conclude that the Employer's assignment to the lathers should not be disturbed." In making this determination, we are assigning the disputed work to the employees of the Em- ployer who are represented by the Lathers but not to that Union or its members. In the absence of evidence that the Carpenters made demands for this type of work assignment on jobsites other than the one involved herein, our present determination is limited to the particular dispute which gave rise to this proceeding. See Carpenters District Counsel of Denver & Vicinity , AFL-CIO, (J. O. Veteto & Son), 146 NLRB 1242. r Accordingly, we deny the request to reopen the hearing. 8 As the Carpenters did not indicate a willingness to enter a settlement agreement, which it modified , until the close of the hearing and the Em- DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended , and upon the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the fol- lowing Determination of Dispute: 1. Lathers employed by Pierce Lathing Com- pany, who are currently represented by Wood, Wire and Metal Lathers International Union, Local 83, AFL-CIO, are entitled to perform the disputed work of installation of suspended ceiling systems and erection of metal studs to be used for a drywall finish in the construction of the Weinstock depart- ment store in Fresno , California. 2. Carpenters Union Local 701, United Brother- hood of Carpenters & Joiners of America, AFL-CIO, and Sequoia District Council of Carpen- ters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, are 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. 3. Within 10 days from the date of this Decision and Determination of Dispute , the Unions named in paragraph 2, above, shall notify the Regional Director for Region 20, in writing, whether or not they will refrain from forcing or requiring the Em- ployer, by means proscribed by Section 8(b)(4)(D ), to assign the work in dispute to their members rather than those represented by Wood, Wire and Metal Lathers International Union, Local 83, AFL-CIO. ployer and the Lathers refused to be parties thereto on the ground that it did not provide for an adjustment respecting the disputed work, it remains our obligation to determine the dispute See Seattle and King County Carpenters District and Vicinity (Gordon Brown , Inc.), 151 NLRB 700