Lathers Union Local 104

LATHERS UNION LOCAL 104 365 Lathers Union Local 104, The Wood, Wire and Metal Lathers International Union, AFL-CIO and Asso- ciated General Contractors of America, Inc., Seattle Northwest Chapter ( The Blaine Petty Company) and Acoustical Workers Local 1982, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 19-CD-159 October 31, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a Section 8(b)(4)(i) and (ii)(D) charge filed on March 30, 1970, by Associated General Contractors of America, Inc., Seattle, Northwest Chapter.' The charge alleged that on or about March 30, 1970, Lathers Union Local 104, The Wood, Wire and Metal Lathers International Union, AFL-CIO,2 engaged in picketing with an object of forcing or requiring The Blaine Petty Company 3 to assign the work of installing hangers and black iron channels for ceiling systems on the Washington Athletic Club remodeling project located at 1325 Sixth Avenue, Seattle, Wash- ington, to members of the Lathers rather than to members of the Acoustical Workers Local 1982, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO.4 A hearing was held at Seattle, Washington, on July 1 and 2, 1970, before Hearing Officer James M. Kennedy. All parties appeared at the hearing and all were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing on the issues. Thereafter, the Employer and the Lathers filed briefs in support of their positions. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds them free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the National Labor Relations Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that The Blaine Petty Compa- ny is a State of Washington corporation with its principal place of business at Issaquah, Washington, where it is engaged in the business of installing ceiling systems in the construction industry. During the last fiscal year in the course of business, the Employer purchased and received goods valued in excess of $50,000 which were shipped from points outside the State of Washington directly to the Employer at points within the State of Washington. We find that the Employer is engaged in 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. H. THE LABOR ORGANIZATIONS INVOLVED The parties have stipulated, and we find, that Lathers Union Local 104, The Wood, Wire and Metal Lathers International Union, AFL-CIO, and Acous- tical Workers Local 1982, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Since 1962, when the company was founded, the Employer has been engaged in business as a contrac- tor primarily involved with the installation of acousti- cal ceilings. Generally employing about 60 employees, the Employer is responsible for approximately 60 percent of the acoustical ceiling work done in King County, Washington.5 Throughout this time, the Employer has followed the custom and practice of other local ceiling contractors and, accordingly, it has always employed members of the Acoustical Workers to fulfill its commitments .6 Thus, the Employer currently has a collective-bargaining agreement, r Hereinafter referred to as the AGC. This employer- association is the collective-bargaining agent for The Blaine Petty Company. 2 Hereinafter referred to as the Lathers. 3 Hereinafter referred to as the Employer. 4 Hereinafter referred to as the Acoustical Workers. 5 In addition to the Washington Athletic Club project out of which the instant dispute arose, the Employer is presently working on the King County Administration Building project , Seattle, Washington. With regard to this project, also, the Employer has been notified (by letter dated May 13, 1970, from the National Joint Board for Settlement of Jurisdictional Disputes) that the Lathers intend to claim the same work on that project as disputed herein. 6 The parties stipulated that, for the last 5 years, at least 90 percent of the installation of hangers and black iron channels for ceiling systems in King County has been done by workmen who are members of the Acoustical Workers. They further stipulated that, for the purposes of this dispute, any period in excess of 5 years and any percentage in excess of 90 percent are not relevant. 186 NLRB No. 70 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effective February 15, 1968, to June 1, 1971, with the Acoustical Workers.? The Employer has no collec- tive-bargaining agreements with any other labor organizations,8 and all of its employees are members of the Acoustical Workers or, occasionally, other carpenter union affiliates. In line with this general operating procedure, when the Employer began work on the Washington Athletic Club job sometime prior to March 1970 it employed members of the Acoustical Workers only for all aspects of the ceiling remodeling. On March 27, 1970, the Lathers' business manager telephoned the AGC's labor relations director and stated that, with respect to this particular job, the Employer was doing work (specifically, the installation of hangers and black iron channels) through Acoustical Workers that properly should be done through the Lathers .9 After checking the matter, the AGC labor relations director called the Lathers and advised that the work did belong to the Acoustical Workers and there was no reason to suggest to the Employer that the work assignment be changed. On the following Monday morning, March 30, 1970, the Lathers picketed the Washington Athletic Club job with a sign saying: Blaine Petty and Carpenters Dist. Council refuses to comply with decisions of Nal. Joint Board-Lathers Local 104. Although the Employer did not have any of its employees working at that time, craftsmen employed by other contractors refused to perform their jobs and a work stoppage ensued. Later in the day, representa- tives of the AGC and the Lathers unsuccessfully tried to resolve the problem, but they did reach an agreement that the picket would be removed any time As indicated , supra this contract was negotiated in the Employer's behalf by the AGC. The agreement provides at article 11-Territory and Work Covered: "(b) The work covered by this Agreement shall be as outlined in the General Constitution and Laws of the Brotherhood of Carpenters and Joiners of America and approved by the AFL-CIO, National Building Trades AFL-CIO decisions of record, Green Book decisions, agreements between International Unions, local awards and area practice." It also provides at article V-Settlement of Disputes and Grievances: "Jurisdictional disputes shall be handled by local methods agreed to by the AGC Chapter and the local union or District Council in the area where the dispute occurs in the following manner; based on decisions of record, agreements and decisions of record as complied [sic I in the Green Book, area practice and/or an agreement agreed to by contesting parties and the employer. If this method does not adjudicate the dispute, it shall be handled by methods jointly agreed to by the National Associated General Contractors and the United Brotherhood of Carpenters and Joiners of America." a The parties have in fact stipulated that at no time during the past 5 years has there been any contractual arrangement between the Lathers and the AGC on the one hand, or the Lathers and the Employer on the other. 9 The Lathers claim to the work was based upon a decision by the National Joint Board for Settlement of Jurisdictional Disputes which was issued August 24, 1966, litigated to the Supreme Court, and reaffirmed effective January 15, 1968. (All parties stipulated that the Joint Board was disbanded September 30, 1969 , and reconstituted in October 1969, on an the Employer was not actually working on the project.10 The AGC filed a Section 8(b)(4)(i) and (ii)(D) charge this same day. Thereafter, by letter dated April 15, 1970, from the Joint Board, the Employer was informed that the Lathers and Carpenters Internationals had agreed that the disputed work was governed by the decision referred to earlier (supra, fn. 9) and, therefore, Lathers should be assigned to install hangers and black iron channels on the Washington Athletic Club project. In a series of letters and telegrams exchanged throughout the first part of May 1970, the Acoustical Workers was directed by its International to comply with the Joint Board determination. Finally, the Acoustical Workers renounced its claim to the work in a letter dated June 2, 1970, to the Lathers. A copy of this letter was forwarded (June 4, 1970) by the Lathers to the Regional Director for Region 19, Charles M. Hender- son, with a request that the Section 8(b)(4)(i) and (ii)(D) charge be dismissed in view of the fact that the Acoustical Workers no longer claimed any jurisdic- tion over the work in question. Pursuant to the long-followed Board holding that an employer must be a party to any settlement agreement before an 8(b)(4)(D) charge can be dismissed, the Regional Director denied the Lathers' dismissal request. The Acoustical Workers officially conveyed to the Employer its renunciation of the black iron channel work in a meeting with the Employer on June 19, 1970, just prior to the hearing on July 1 and 2, 1970. B. The Work in Dispute The dispute arises from competing claims by the Acoustical Workers, as the bargaining representative for the Employer's employees, and the Lathers to the interim basis. In late February 1970, the Joint Board was permanently reestablished.) The decision states, in pertinent part , "I. The decision of this Hearings Panel is limited to the jurisdictional disputes of work assignments in controversy between lathers and carpenters involved in the installation of ceiling systems . .. 4. The following types of ceiling systems are included in this paragraph: Direct Hung Suspension System; Attached Concealed System without Backing Board; Furring Bar Attached System ; Furring Bar Suspension System ; Indirect Hung Suspension System or similar systems. (a) The installation of the 1- 1/2 inch channel or similar carrying channel and hangers in any of the above types of systems shall be performed by lathers. (b) The installation of all other work , including the installation of a ceiling system in its entirety if no 1-1/2 inch channel or other carrying channel is used, shall be performed by carpenters." Both the Lathers and the Acoustical Workers, as an affiliate of the Carpenters International, were parties to and are bound by this decision. Neither the AGC nor the Employer was a party to this decision, and neither the AGC national organization not the Seattle Northwest Chapter has been a party to the Joint Board since its disbandment in September 1969. The Employer, however, is bound to Joint Board decisions in some circumstances through its contract with the Acoustical Workers (see supra, fn. 7). 10 The United States District Court for the Western District of Washington, Northern Division, granted a temporary injunction, April 30, 1970, prohibiting all picketing until final disposition of the instant dispute. LATHERS UNION LOCAL 104 work of installing hangers and black iron channels for ceiling systems in new and remodeled buildings. Specifically, the record indicates that this includes the placement of inserts-when black iron channels are to be used-in a new structural ceiling or in an existing ceiling from which a ceiling system is to be dropped; the attachment of hangers, usually wire, to the inserts above; and, the attachment of black iron channels, sometimes referred to as "C" type carrying channels, to the hangers. Black iron channels, while most often used at a 1-1 /2 inch width, may be used at 3/4 inch, 1 inch, and 2 inch widths. The term "black iron channel," as the subject of dispute herein, is meant to include all of these sizes. C. The Contentions of the Parties 1. The Employer (Charging Party AGC): At the outset, the Employer notes that there is an active dispute before the Board in this case regardless of any alleged "agreement" between the Lathers and the Acoustical Workers because it was not a party to such "agreement." On the merits, the Employer prefers that the work in question be assigned to members of the Acoustical Workers. Its position rests on the collective-bargaining agreement between it and the Acoustical Workers; company and practices; relative skills, economy and efficiency of operations; and the maintenance of a stable and effective work force. 2. The Lathers: The Lathers maintains that the Board has no jurisdiction in this case and, therefore, the charge should be dismissed. On this point, it cites the recent United States Court of Appeals for the District of Columbia case, Plasterers Local 79 v. N.L. R. B. (Southwestern Construction Co.)," in which the Court held that the Board may not ignore an agreement between two unions to settle a jurisdiction- al dispute through the construction industry's Joint Board even though the employer has not agreed also to be bound by such action. The Court interprets Section 10(k) of the Act to mean that rival unions are the only parties to a jurisdictional dispute. 3. The Acoustical Workers: Until June 2, 1970, the Acoustical Workers claimed the disputed work primarily because, in terms of area practice and the practice of the Employer, its members have always performed this work. After June 2, 1970, it states that the matter has been taken out of its hands by the Carpenters International which has disclaimed juris- diction over the disputed work as a result of the Joint Board's determination. 11 440 F 2d 174 (C.A.D C.), denied enforcement 172 NLRB No 77, see also 167 NLRB 185. 12 See the dissenting opinion of Circuit Judge MacKinnon in D. Applicability of the Statute 367 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. The record shows, and the Lathers does not deny, that on March 27, 1970, its representative sought and demanded from the Employer the assignment of lathers rather than acoustical workmen to do the work of installing inserts, hangers, and black iron channels on the Washington Athletic Club remodeling project in Seattle. When the request was denied, the Lathers proceeded to establish a picket at the jobsite which resulted in a work stoppage by all crafts on March 30, 1970. Accordingly, we conclude that, on the basis of the entire record, there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred, and that the dispute is properly before the Board for determi- nation under Section 10(k) of the Act. However, before considering the merits of this dispute, we note that the Lathers defense herein is that the Regional Director erred in not dismissing the charge prior to the hearing because the parties had agreed upon a voluntary method of adjustment of the dispute. It argues that the term "parties" as used in Section 10(k) does not mean the employer and two unions or groups of employees claiming the work in dispute need agree upon a method of voluntary adjustment of the dispute for the Board to quash the notice of hearing, but only that the two unions or groups of employees must so agree. Since the Lathers and the Acoustical Workers are both subject to the Joint Board's jurisdiction, the argument concludes that the notice of hearing should have been quashed. With due respect for the opinion of a majority of the District of Columbia Court of Appeals in support of this position, as recently announced in Southwestern Construction (supra, fn. 11), we continue to adhere to our longstanding and consistent position 12 that Section 10(k) must be interpreted to mean that the employer controlling the work assignment, as well as the rival unions or groups of employees involved, comprise the "parties to such dispute," and all must approve and enter into a voluntary settlement procedure in order to preclude a hearing and determination pursuant to that Section.13 Finally, we note that the Board's interpretation of this aspect of Section 10(k) was neither questioned nor disturbed when the National Labor Relations Act was most Southwestern Construction (cited supra) 13 For an extensive compilation of Board's cases in point, see fn I in Judge MacKinnon's dissenting opinion noted above. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recently amended by Congress in 1959. Accordingly, we find no merit in this contention of the Lathers.14 E. Merits of the Dispute In the CBS case,15 the Supreme Court charged the Board with the "responsibility and duty to decide which of two or more employee groups claiming the right to perform certain work tasks is right and then specifically to award such tasks in accordance with its decision." Pursuant to the mandate, the Board in the J. A. Jones case 16 stated that it would thenceforth determine the proper assignment of disputed work only after taking into account and balancing all relevant factors. The following factors are asserted in support of the claims of the parties herein. 1. Collective-bargaining agreement Since the Acoustical Workers Local involved in this case was chartered in 1952, the record reveals that it has enjoyed a more than satisfactory bargaining relationship with the Employer and with other King County, Washington, employers in the business of installing ceiling systems. All of the employers have almost exclusively used acoustical workers in their business. The Employer's work force is no exception, being at most times wholly comprised of. these workers. As stipulated by the parties, for the last 5 years, there has never been any kind of bargaining relationship between the Lathers and the Employer and/or the AGC. The current contract covering the Employer's work force was entered into by the Employer (represented by the AGC) and by the Acoustical Workers (represented by the Carpenters International) on February 21, 1968. While that agreement provides that the work covered shall be, inter alia, "Green Book decisions, "17 and also that settlement of jurisdictional disputes shall be based on, inter alia, "decisions of record as complied [sic] in the Green Book" (supra, fn. 7), both provisions also base work covered and dispute settlement on "area practice." Because this agreement was entered into approximately 18 months after the issuance of the "Green Book" decision on the installation of ceiling systems (supra, fn. 9), and also more than I month after its January 15, 1968, effective date, we cannot find, nor does the Acoustical 14 We also note that the record is not altogether clear as to whether the Joint Board decision actually does determine the entire dispute between the Lathers and the Acoustical Workers. The disputed work in this case is defined as simply "hangers and black iron channels" whereas the Joint Board decision speaks of " 1-1/2 inch channel or similar carrying channel and hangers" (see supra, fn. 9). While the record shows agreement between the unions as to what "black iron channel" and "1-1/2 inch channel mean (and it is the same), it does not reveal a precise and agreed to definition of ..or similar carrying channel." rs N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood ofElectrical Workers, AFL-CIO (Columbia Workers Local herein argue otherwise, that this contract was meant to establish Joint Board decisions as the controlling factors in these two provisions. On the contrary, we conclude that such factors are simply one of a number of factors to be considered, with the "area practice" factor especially relevant to this dispute as discussed infra. Therefore, we do not find the sole collective- bargaining agreement between parties to this dispute as controlling. 2. Company and industry practices In addition to the fact that the record points to the utilization of acoustical workers for practically all work in connection with the installation of suspended acoustical ceilings in King County, Washington, the parties have stipulated, with specific reference to the type of work which gave rise to this dispute, that for the last 5 years at least 90 percent of it has been done by members of the Acoustical Workers. Furthermore, any period in excess of 5 years and any percentage in excess of 90 percent were also stipulated to be unimportant for the purposes of this case. It is also established that the Employer herein is responsible for 60 percent of all the ceiling systems work in the county. The record is silent as to construction industry practice in other areas of the country in terms of the disputed work, or in terms of all acoustical ceiling work. It is clear that prior to March 1970, in King County, there was never any objection from the Lathers concerning the use of acoustical workers for any part of the suspended ceiling installation process. In view of these considerations, we find that company and industry practices favor the Acoustical Workers. 3. Relative skills, economy and efficiency of operations The "black iron" channel disputed herein is only one of a number of types of carrying channels used for suspended ceilings.18 As previously found, members of the Acoustical Workers have for years been engaged in the installation of all of these kinds of carrying channels. Overall, ceiling installation work requires experience and skill because it involves the Broadcasting System), 364 U.S. 573, 586. 16 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. 17 The "Green Book" refers to a publication by the Building and Construction Trades Department , AFL-CIO, which contains the Plan for Settling Jurisdictional Disputes Nationally and Locally, and Agreements and Decisions Rendered Affecting the Building Industry. The decision (supra, In. 9) relied on by the Lathers in this case is included in the book. ra The most common other types are the "H-bar" and "T-bar" iron channels which are silver in color. LATHERS UNION LOCAL 104 use of finished precut materials and difficulties are commonly encountered since it is necessary to accomodate a particular ceiling system and its components to electrical and mechanical layouts already established. Of particular importance in the area of experience and skill, too, is the fact that the finished ceiling must maintain a proper and uniform height, and this is directly related to the lengths at which each wire hanger is set when attached to ceiling inserts and then the overall result when the specific type of carrying channel is attached to the hanger. The amount of adjustment required after the ceiling panels are attached to the carrying channel in order to arrive at a finished ceiling of uniform and proper height is directly related to the degree of skill possessed by the worker in carrying out each phase of the entire operation. While it is not disputed that Lathers could, with relative ease, perfect the basic skill involved in placing ceiling inserts and attaching hangers and black iron carrying channels, it is apparent that it will take some time for lathers to perfect the kind of skill and precision which, over the years, the acoustical workers have developed in producing satisfactory finished suspended ceilings. Finally, there is another aspect of experience and skill which weighs in favor of the acoustical workers. Although ceiling work in new buildings ordinarily proceeds according to blueprint plans and specifica- tions, blueprints are rarely available when remodeling work is done on older buildings. In these instances, which account for approximately 25 percent of the Employer's business, workmen customarily do their jobs on the basis of verbal instructions and specifica- tions. Clearly, past experience becomes an invaluable asset in these circumstances, and the average number of years in the business for the Employer's usual work force of 60 men is about 12 years. It must be kept in mind that we are concerned here with a small aspect of ceiling installation work. The Employer has estimated that, of the total installation process of any given ceiling, only about 10 to 15 percent of the completed job was devoted to the supporting members (inserts-hangers-carrying chan- nels). Moreover, black iron channel, while the cheapest to install, is not the type of carrying channel most often used; the Employer estimates that only about 2 to 3 percent of its total manhours is devoted to its installation. There is another feature of carrying channel installation that is pertinent here. Although it might seem as though the three disputed installation steps would follow in continuous sequence, this is not the case. Assuming that the disputed work is per- formed by lathers, after inserts are placed, other work would usually be done and, particularly, wall molding 369 would be attached by acoustical workers because it determines ceiling height. Hangers and carrying channel would be attached next by lathers, and then acoustical workers would take over again to put the finished acoustical panels in place. If the ceiling was not level, as is usually so, hangers and carrying channel would have to be adjusted. In the instant dispute, lathers claim this adjustment operation if black iron channel is used. If the work assignment remains as it now is, acoustical workers would perform all phases of this operation. Obviously, to break up into segments and assign to two different employee groups what is logically and what has in fact always been a continuous job operation will result in increased job manhours, increased lost-time man- hours, and higher overall costs. The Employer has added that such a job differentiation is likely to result in an extremely uncertain situation in terms of ever determining in advance the time and cost for a given job. This is because, since all of the types of carrying channel serve the same function and are generally interchangeable, except that black iron is cheaper, the type of channel used on a job is frequently changed during the course of construction. Such a change was actually made on the Washington Athletic Club project. Therefore, we find that the factors of skill, economy, and efficiency of operations also favor the Acoustical Workers claim to the work. 4. Gain or loss of employment The Employer has developed an essentially stable work force of approximately 60 acoustical workers. These employees, for the most part, have retained their jobs for long periods of time without frequent layoffs and referrals back to the hiring hall. The Employer testified that the award of even so limited a part of their current duties to lathers will necessitate laying off some of the now full-time employed acoustical workers. Despite the record evidence that lathers presently have an unemployment rate in King County of about 10 to 20 percent,19 the work requested herein would provide only 2 to 3 percent of the Employer's total manhours. Moreover, this would not be steady employment such as the Employer is able to provide to acoustical workers, but the Employer would only be calling on lathers for black iron installation as job needs arose. We conclude that a finding herein that the Lathers are entitled to the disputed work would not result in a particularly significant gain in employment opportu- nities for its members. But, such an award would 19 There is no indication as to how this rate compares with that of the whole construction industry, or with that of other King County industries 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apparently bring about a loss of full -time employment for some of the Employer's trained and experienced acoustical workmen . Therefore, we do not find that the employment factor favors the Lathers. CONCLUSIONS Upon the entire record in this case and the foregoing consideration of all relevant factors, in particular the factors of company and industry practices, relative skills, economy, and efficiency of operations, we conclude that employees of the Employer who are represented by the Acoustical Workers are entitled to the work in question, and we shall determine the dispute in their favor . We do not, however, award the work to the Acoustical Workers or its members. Prior to the hearing in this case, on May 28, 1970, the Employer filed a motion that has been referred to the Board to extend the scope of the proceeding to include not only the designated work at the Washing- ton Athletic Club remodeling project but also to all similar work done by the Employer within King County, Washington. Since, in light of all the foregoing, there is a strong probability that similar disputes involving the Lathers may occur in the future, we hold that the determination in this case applies not only to the job in which the dispute arose but also to all similar work done in King County, Washington, by the Employer. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following determination of dispute: Employees of The Blaine Petty Company, Issaquah, Washington, who are currently represented by Acous- tical Workers Local 1982, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to install inserts, hangers, and black iron channels for ceiling systems in King County, Washington.