United Brotherhood of Carpenters

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO and Siciliano Brothers Inc. and Laborers' International Union of North America, Local Union No. 833, AFL-CIO. Case 6-CD-337 has performed services outside the Commonwealth of Pennsylvania valued in excess of $50,000. According- ly, we find that Siciliano Brothers Inc. 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. November 23, 1970 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended , following a charge filed by Siciliano Brothers Inc., herein called the Employer, alleging that United Brotherhood of Carpenters and Joiners of America , Carpenters District Council of Western Pennsylvania , AFL-CIO, herein called Carpenters, had violated Section 8(b)(4)(D) of the Act by engaging in certain pros- cribed activity with an object of forcing or requiring the Employer to assign the work in dispute to Carpenters rather than to employees of the Employer represented by Laborers' International Union of North America , Local Union No. 833 , AFL-CIO, herein called Laborers. Pursuant to notice , a hearing was held before Hearing Officer Samuel S . Blaufeld on August 4 and 5, 1970. 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 . Thereafter, briefs were filed by Carpenters and Laborers. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connec- tion with this case to a three -member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this case, including the briefs, and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Siciliano Brothers Inc. is engaged as a lathing and plastering contractor in the construction industry, with its principal office in Pittsburgh, Pennsylvania. During the past 12 months, the Employer has received, directly from points outside the Commonwealth of Pennsylvania, goods and materials valued in excess of $50,000 for use at construction projects within the Commonwealth of Pennsylvania. During that same period, the Employer 186 NLRB No. 115 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Carpenters and Laborers are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. The Background Facts The Employer entered into a contract with Coco Brothers, a general contractor, to perform lath and plaster work on an apartment project, Ambridge Towers, being constructed in Ambridge, Pennsylvania. The 1 contract includes a requirement that i the Employer erect an exterior metal scaffolding, approx- imately 80 feet in height, to afford staging for lathers and plasterers employed by the Employer and to be used as a place for temporary storage of the Employer's supplies. The disputed work was assigned to employees of the Employer represented by Labor- ers on June 23, 1970. The Employer is a member of the Contracting Plasterers' and Lathers' International Association (CPLIA), which has a collective-bargaining agree- ment with Laborers' International Union of North America, AFL-CIO. The Employer adopted and signed this agreement on April 27, 1970, prior to its assignment of the work in dispute. Article III of the agreement provides, in part: The work jurisdiction covered by this Agree- ment, when performed by the Employer shall include that work which has been historically or traditionally or contractually assigned to members of the Laborers' International Union of North America, including but not limited to the unload- ing, erecting, dismantling, moving and adjustment of scaffolds . . The Employer is also a member of the Employing Plasterers' Association of Allegheny County. Mem- bers of the association are bound to a collective- bargaining agreement with the Laborers' District Council of Western Pennsylvania, which includes a provision recognizing as laborer work: "Building of all scaffolds up to fourteen feet (14) This agreement expired on May 31, 1970, but the Employer's vice president, Vincent Siciliano, testified that the agreement remained in effect at the time of the assignment of the disputed work through oral UNITED BROTHERHOOD OF CARPENTERS 705 agreement pending renegotiation . That agreement is silent regarding erection of scaffolds greater than 14 feet in height . The Employer has no collective- bargaining agreement with Carpenters and does not employ individuals represented by Carpenters. Uncontradicted testimony by Caraway Houston, the Employer's labor steward at the Ambridge project, establishes that on the day after the Employ- er's laborer employees began to erect and assemble the scaffolding, about seven employees , represented by Carpenters and employed by other contractors at the jobsite, sat on the scaffold, preventing the employees of the Employer from performing their assigned work . Houston further testified that the steward for the general contractor's employees repre- sented by Carpenters told him that if the laborers attempted to erect the scaffold , the carpenter employ- ees would walk off the job . Work on the erection of the scaffold was thereafter suspended for a short while until a temporary injunction against Carpenters was obtained . The work was in progress , as originally assigned , at the time of the hearing. B. Work in Dispute The work in dispute here is the erection of tubular steel scaffolding above the height of 14 feet at the Ambridge Towers apartment project in Ambridge, Pennsylvania. C. Contentions of the Parties The Employer announced at the hearing that it was assuming a neutral position in regard to which labor organization had the superior claim to the work in dispute. Vice president Siciliano did testify , however, to the effect that the Employer assigned the work to its laborer employees pursuant to the agreement between CPLIA and Laborers International, and because the Employer found it an economical practice. Both Siciliano and Houston stated that little skill or training was necessary to satisfactorily erect scaffold- ing. Carpenters claims that the work should properly be assigned to individuals represented by it. In support, it argues that both industry and area practice call for carpenters to perform any scaffolding erection in excess of 14 feet . Additionally, Carpenters argues that considerations of skill and safety favor an award of the disputed work to it, as does a long series of National Joint Board decisions, including the land- mark 1920 award published in the "Green Book." Laborers contends that the Employer's assignment to employees represented by Laborers is appropriate and should not be disturbed . It argues that its members possess sufficient skills to perform the work satisfactorily; that the Employer has consistently assigned the erection of scaffolding to laborer employees ; and that the area practice of lathing and plastering contractors is consistent with the Employ- er's assignment to laborers. Laborers also argues that the Employer has never agreed to be bound by determinations of the National Joint Board and, accordingly, its awards are of no weight in these proceedings. D. Applicability of the Statute Before the Board may proceed with a determination of a 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 indicates that individuals represented by Carpenters sat on the scaffolding, preventing employ- ees of the Employer from performing their assigned work. Further, uncontradicted testimony established that Carpenters' steward at the jobsite told the Employer's foreman that carpenter employees would walk off the job if laborers continued to perform the disputed work. On this evidence and testimony, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. In the circumstances of this case, we are not satisfied that at times here material all parties have agreed to be bound by determinations of work jurisdiction made by the National Joint Board. Neither the Contracting Plasterers' and Lathers' International Association's contract nor the local area agreement provide for the submission of jurisdictional disputes to the Joint Board. Moreover, the Employer was not a participant in a Joint Board proceeding. Thus, at all times material herein, no binding commitment to abide by determinations of the Joint Board was in effect. Under these circumstances, we find that it will effectuate the policies underlying Sections 10(k) and 8(b)(4)(D) for us to determine the merits of the dispute. Accordingly, we find that the instant dispute is appropriate for resolution under Section 10(k) of the Act. On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due concern to various relevant factors.' The Board has held that its determination in a jurisdictional i N L R B v Radio and Television Broadcast Engineers Union, Local Broadcasting System), 364 U S 573 1212, international Brotherhood of Electrical Workers, AFL-CIO (Columbia 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute is an act of judgment based upon considera- tions of commonsense and experience, reached by balancing those factors involved in a particular case.2 The following factors are relevant in making a determination of the dispute before us: 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board nor is there evidence indicating that a Board certification covers the disputed work. The Employer is a member of the Contracting Plasterers' and Lathers' International Association, which has a current collective-bargaining agreement with the Laborers' International Union of North America, with which Laborers is affiliated. The Employer has no contract with Carpenters. Pursuant to the aforesaid agreement, the Employer has as- signed employees represented by Laborers to perform the erection of scaffolding. 2. Company and area practice The Employer's vice president testified that it was not normally required to erect scaffolds in excess of 14 feet. Richard Ostrom, another plastering and lathing contractor in the area, testified that he has always assigned the work of erecting and dismantling tubular steel scaffolding to employees represented by Labor- ers, including projects where the height of the scaffold exceeded 14 feet. Carpenters demonstrated that the general area practice in the construction industry is to employ carpenters to construct scaffolds ; they offered no evidence sufficient to rebut Ostrom 's testimony that the practice in the plastering and lathing trade was to utilize employees represented by Laborers for all scaffolding construction. 3. Skills, efficiency and economy While it appears from the record that scaffolds of significant height often present a problem in regard to their engineering, the construction phase is essentially a mere assembly operation requiring neither special skills nor tools.3 Both carpenters and laborers possess the requisite abilities to perform the work, and the Employer is apparently satisfied with the skills and safety performance of its laborer employees. The Employer has testified that it is more efficient and economical to assign the work to members of Laborers. F. Conclusions Having considered all pertinent factors present herein, we conclude that employees represented by Laborers are entitled to perform the work in dispute. This assignment is compatible with the collective- bargaining agreement between Laborers and the Employer. Moreover, the assignment appears consist- ent with the practice of area plastering and lathing contractors. In addition, members of Laborers pos- sess sufficient skills to perform the disputed work and the Employer has been satisfied with their perform- ance. We conclude from all of the foregoing that the Employer's assignment of work to employees repre- sented by Laborers should not be disturbed. On the basis of the entire record, therefore, we shall deter- mine the existing jurisdictional controversy by award- ing to the employees of the Employer represented by Laborers, rather than to individuals represented by Carpenters, the work of erecting tubular steel scaf- folding beyond 14 feet in height. In making this determination, we are assigning the disputed work to the employees of Siciliano Brothers Inc. who are represented by Laborers, but not to that Union or its members.4 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 case, the National Labor Relations Board hereby makes the following determination of dispute: 1. Employees of Siciliano Brothers Inc., who are currently represented by Laborers' International Union of North America, Local Union No. 833, AFL-CIO, are entitled to perform the work of erecting all tubular steel scaffolding where the height of the scaffolding exceeds 14 feet at the Ambridge Towers apartment project , Ambridge, Pennsylvania. 2. United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Siciliano Brothers Inc., to assign such scaf- folding work to carpenters represented by United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, 2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. and Joiners of America, Local No. 213, AFL-CIO (General Masonry Inc.) A. Jones Construction Co.), 135 NLRB 1402. 175 NLRB No. 101. 3 For a detailed description of the skills and tools necessary to the 4 On the record before us, we find no merit in Laborers' request for a erection of tubular steel scaffolding, see United Brotherhood of Carpenters broad Remedial Order. Such request is hereby denied. UNITED BROTHERHOOD OF CARPENTERS 707 shall notify the Regional Director for Region 6, in hood of Carpenters and Joiners of America, Carpen- writing, whether or not it will refrain from forcing or ters District Council of Western Pennsylvania, requiring the Employer, by means proscribed by AFL-CIO, rather than to employees represented by Section 8(b)(4)(D) of the Act, to assign the work in Laborers' International Union of North America, dispute to carpenters represented by United Brother- Local Union No. 833, AFL-CIO.