United Brothd. of Carpenters, Local 200

UNITED BROTHD. OF CARPENTERS, LOCAL 200, United Brotherhood of Carpenters and Joiners of America, Local No. 200, AFL-CIO and Pagura Masonry Contractors, Inc. and Laborers International Union of North America, Local No. 423, AFL-CIO. Case 9-CD-154 October 17, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Pagura Masonry Contractors, Inc., herein called Pagura Masonry or the Employer, alleging that United Brotherhood of Carpenters and Joiners of America, Local No. 200, AFL-CIO, herein called Carpenters Local 200, has violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer William C. Mittendorf on May 28, June 12, and July 3, 1969. The Employer, Carpenters Local 200 and Local No. 423, International Union of Laborers of North America, AFL-CIO, hereinafter called Laborers, 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. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection 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 no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs of Carpenters Local 200, Laborers Local 423, and the Employer, the Board makes the following findings:' I. THE BUSINESS OF THE EMPLOYER Pagura Masonry Contractors, Inc., an Ohio corporation with its principal office and place of business in Columbus, Ohio, is engaged in the erection of masonry as a masonry contractor in the buliding and construction industry in various parts of the State of Ohio. During the past 12 months Pagura Masonry Contractors, Inc. has purchased and received goods from outside the State of Ohio valued in excess of $50,000. The parties agree, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the policies of the Act to 'Carpenters Local 200's Motion to Quash the Notice of Hearing is denied for the reasons hereinafter stated The Mason Contractors Association of America was granted permission to file an amicus curiae brief which has also been considered assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED 209 The parties stipulated, and we find, that Carpenters Local 200 and Laborers International Union of North America, Local No. 423, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer had a subcontract with Cunningham-Limp Co., the prime contractor, in November 1968, to perform the masonry work at the DeSoto Chemical Co. plant located at New World Drive and Watkins Drive in Columbus, Ohio. The Employer is a member of the Masonry Contractors Association of Columbus, Ohio, which in turn is affiliated with a national association, the Masonry Contractors Association of America. The national association has a collective-bargaining agreement with the Laborers' International Union to which the Columbus Association and the Employer are parties. This agreement provides, in pertinent part, as follows: The work jurisdiction covered by this Agreement when performed by members of the ASSOCIATION (Employer) shall include the work which has historically or traditionally or contractually assigned to members of the LABORERS INTERNATIONAL UNION OF NORTH AMERICA in the tending of Masons including . . . the unloading, erecting, dismantling, moving and adjustments of scaffolds. The Employer, pursuant to his agreement with the Laborers, employed members of Local 423 to erect, move, dismantle, and adjust metal tubular scaffolding at the above-mentioned plant. This agreement does not provide that the signatories submit jurisdictional disputes to the National Joint Board for the Settlement of Jurisdictional Disputes, hereinafter referred to as Joint Board, or abide by its decisions. The Employer, Pagura Masonry Co., Inc., has no collective-bargaining agreement with Carpenters Local 200.2 Fred D Pagura, President of the Employer, testified that on or about January 21, 1969, he was contacted by Ernest E. Plunkett, Business Representative of the Carpenters Local 200, who 'Fred D Pagura, President of the Employer , is also president and owner of a separate corporate entity, Fred D Pagura, Inc This latter corporation is engaged in general sub-contracting, such as concrete forming work and finished carpentry work, but does not perform any masonry work. This firm is a signatory to a collective-bargaining agreement between The Central Ohio Chapter, The Associated General Contractors of America and Local 200 This latter agreement specifically provides that the parties thereto shall submit jurisdictional disputes to the Joint Board Carpenters Local 200's contentions as to the effect of this agreement are discussed below 179 NLRB No. 36, 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquired as to the assignment of the masonry scaffolding on the DeSoto plant job. Pagura informed Plunkett that he had assigned the work to Laborers (mason tenders, Local 423) in accordance with his national agreement through the Masonry Contractors Association, Inc. He further stated that it was his policy to have mason tenders attend to the building of scaffolding. Plunkett then told Charles Ralston, superintendent for Cunningham-Limp who was present at the time, that the scaffolding over 14 feet was properly carpenters' work and he would have to see that carpenters were assigned the work. On January 23, Plunkett again appeared at the jobsite and insisted that Ralston in Pagura's presence, submit the question of jurisdiction as to the scaffolding to the Joint Board. Upon Ralston's refusal to acquiesce Plunkett told Pagura to take the question to the Joint Board. Pagura then told Plunkett he was not stipulated to the Joint Board and further he had made an assignment and was satisfied with it. To the latter Plunkett stated "I will fight it with everything I've got to get this straightened out." This above-described conversation took place near the lunchtime, and when Pagura and Ralston returned from luncheon they found that the four or five carpenters who were working on the job had suddenly become "sick" and left the job. On the following day Cunningham-Limp was unable to obtain carpenters from the Carpenters Local 200, and none was referred for about 2 weeks despite repeated requests. B. The Work in Dispute The work in dispute is the erection of steel tubular section scaffolds above the height of 14 feet at the DeSoto Chemical Company plant located in Columbus, Ohio.3 C. The Contention of the Parties Carpenters Local 200 contends that Pagura Masonry Contractors, Inc. and Fred D. Pagura, Inc., are a single Employer, and because of the latter firm's signing of the AGC agreement, Pagura Masonry is bound by an award by the Joint Board. On the latter basis Local 200 argues that all parties therefore have agreed to submit the dispute to the Joint Board, and accordingly the Board may not determine the dispute under Section 10(k) of the Act. Laborers Local 423 and the Employer contend that on the basis of their collective-bargaining agreement they are not stipulated to the Joint Board, and that historically laborers (mason tenders) have performed the type of work in dispute for the Employer and for other masonry contractors, members of the Masonry Contractors 'For a detailed description of this type of scaffolding which in the 1930's began to replace the wooden scaffolding used earlier, see Seedorf Masonry Co. 173 NLRB No 184 Association in the area. They further contend that the assignment of the work to laborers by the Employer was proper because it is more skillfully, efficiently, and economically performed when done by laborers The Employer contends that the Employer and Fred D. Pagura, Inc., are wholly independent corporate entities and that each corporate entity performs work of an entirely different nature, and each is bound only to the collective-bargaining agreement it has executed. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which a Section 8(b)(4)(D) charge has arisen. However, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The record shows that in January 1969, the Carpenters' business agent at the DeSoto Chemical plant construction site, where laborers employed by the Employer were engaging in scaffolding work, told the Employer that carpenters and not laborers should perform that work. The Employer responded that he was satisfied with the assignment to Laborers. Shortly thereafter, there having been no reassignment of the work, Carpenters employed by the prime contractor became "sick" and left the job. No carpenters were referred to the job for approximately 2 weeks despite repeated requests. The record further shows that the Employer in 1968 was involved in two other disputes with the Carpenters over the use of laborers to perform masonry scaffolding on projects in Columbus, Ohio. The Employer, as a masonry subcontractor on both projects, assigned the scaffolding work to employees represented by the Laborers. The Carpenters officials claimed the scaffolding work as work of the carpenters, upon both projects. On one project when the Employer informed the Carpenters officials he would not change his assignment, the general contractor's carpenters became "ill" for 2 or 3 weeks. The general contractor, in order to get the carpenters back to work, removed the scaffolding work from the Employer's subcontract and assigned the work to carpenters. However, when the carpenters performed the work the laborers walked off the job. When the Employer completed his masonry subcontract the prime contractor back-charged the Employer $1300 as the cost to the prime contractor for building the scaffolds with carpenters. On the other project, after the Carpenters' claim and the Employer's refusal to change his assignment, the carpenters walked off the job and did not return until the general contractor submitted a request to the Joint Board. In view of the conduct described above, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that UNITED BROTHD. OF CARPENTERS, LOCAL 200 211 the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute The Employer, through its membership in the Masonry Contractors Association, is bound by a collective-bargaining agreement with Local 423 Laborers International Union which covers all masonry scaffolding work. The Employer has no contract with Carpenters Local 200.1 The record discloses that masonry scaffolding is erected as the masonry work progresses and that the time spent erecting and dismantling such scaffolding is minimal. Therefore, the laborers (mason tenders) assigned to this work are also available to assist masons, performing such tasks as carrying and stacking bricks, tending and carrying mortar. The use of carpenters on scaffolding over 14 feet high would necessarily require the Employer to hire carpenters, there being none on its payroll, and would result in the accumulation of idle time and increased costs in the production of the work. Testimony by the Employer and other masonry contractors compels the conclusion that the overwhelming practice of this Employer as well as the industry in Columbus, Ohio, is to assign metal masonry scaffolding work to laborers. Other factors usually considered by the Board in jurisdictional dispute cases provide little assistance in determining the instant dispute. Neither of the Unions has been certified. The Joint Board Decision, relied upon by the Carpenters in support of its claim, is not binding upon the Employer, who is unwilling to abide by the Decision. In fact, the Employer specifically informed the Joint Board by telegram on February 6, 1969, that he had made no request for a job decision from the Joint Board nor authorized such a request since he was not stipulated to the Joint Board. It appears from the record that carpenters and masonry contractors laborers possess the requisite abilities to do the work. In view of the foregoing, on the basis of the record as a whole, and upon appraisal of all relevant considerations, we believe that the work in dispute We find without merit the contention of Carpenters Local 200 that the Fred D Pagura Co , Inc , and the Pagura Masonry Co , Inc are a single employer and therefore , since Fred D Pagura, Inc , is stipulated to the National Joint Board, the Employer herein is also bound The record establishes that while the two corporations are owned and controlled by the same stockholder, there are different secretaries, they maintain separate books, bank accounts , payrolls, make their own employment compensation payments and other deductions , pay separate taxes, have separate supervisors, employ separate types of employees , (mason tenders - general laborers), and' have separate collective-bargaining agreements negotiated by separate employer associations. From all of the above we find that the AGC contract is not binding on Pagura Masonry contractors, Inc Matt J Zaich, 143 NLRB 133 Nor do we find merit in Carpenters Local 200's contention , that the Carpenters and Laborers have voluntarily agreed , as disclosed by the record, to two additional methods for the elimination of disputes over masonry scaffolding The Employer is not a party to such agreements and cannot be held to be bound thereby should be awarded to employees represented by Laborers Local 423. The fact that the Employer's assignment conforms to its own and area practices and is consistent with its collective-bargaining agreement, the fact that laborers employed by the Employer not only have the requisite skill but are familiar with all facets of the work, and the attendant efficiency and economy of operations lead us to conclude that Employer's assignment of the work is the proper one. Therefore, we shall determine the dispute by assigning the work in question to employees of Pagura Masonry Co., Inc., represented by Laborers Local 423.5 In making this determination, which is limited to the controversy which gives rise to this proceeding, we are not assigning the work to Local 423 or its members.6 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 the dispute. 1. Employees employed by Pagura Masonry Co., Inc., who are represented by Laborers International Union of North America, Local No. 423, AFL-CIO, rather than carpenters represented by Local No. 200, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the erection, assembly, and dismantling of metal tubular scaffolds used in the erection of masonry walls at the construction site of the DeSoto Chemical Co., plant in Columbus, Ohio. 2. Local No. 200, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer, Pagura Masonry Co., Inc., to assign the above work to carpenters represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local No. 200, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether it will or will not refrain from forcing or requiring the Employer, Pagura Masonry Contractors, Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to carpenters, rather than to employees of the Employer who are represented by Laborers'Local 423. 'On the record before us, we find no merit in the Employer's request for a broad remedial order The request is hereby denied The Masonry Contractors Association of Columbus , Ohio, Inc , joined the Employer in the request for a broad remedial order The request is hereby denied as the Association is not a party herein 'See Porrazzo and Hurley Co, Inc. 177 NLRB No 36, United Brotherhood of Carpenters and Joiners of America, Local No 213, AFL-CIO (General Masonry, Inc ). 175 NLRB No 101, United Brotherhood of Carpenters and Joiners , Local No 153 (Blount Bros Corporation ), 175 NLRB No 81