Carpenters, Local 1759

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Floor Coverers and Decorators , Local Un- ion 1759, AFL-CIO and Sam D. Stern Furniture Company, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 872, Party to Contract. Case 6- CD-374 May 25, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND KENNEDY This a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed on December 30, 1970, by Sam D. Stern Furniture Company, Inc., hereinafter called Stern or the Employer, alleging that United Brotherhood of Carpenters and Joiners of America, Floor Coverers and Decorators, Local Union 1759, AFL-CIO, hereinafter called Carpenters or Respondent, had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Pittsburgh, Pennsylvania, on February 22, 1971, before Hearing Officer Peter B. Hoffman. The Employer, the Carpenters, and the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 872, hereinafter called Teamsters appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. None of the parties filed briefs. 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. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE EMPLOYER The parties stipulated that the Employer is a Penn- sylvania corporation with its principal office located in Monessen, Pennsylvania; that it is engaged in the retail and nonretail sale of furniture and carpeting; that dur- ing the past 12-month period the Employer's gross volume of business was in excess of $500,000; and that during the same period the Employer sold goods valued in excess of $50,000, which it received directly from points outside the Commonwealth of Pennsylvania. Upon the basis of the facts the parties so stipulated, we find that the Employer is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) 190 NLRB No. 103 of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS The record shows, and we find, that the Teamsters and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. The Work at Issue This proceeding arises out of a dispute over whether the work of installing carpeting on the floors of Execu- tive House, an apartment building under construction in Washington, Pennsylvania, shall be assigned to members of the Carpenters or retained by employees of the Employer represented by the Teamsters. B. Background and Facts of the Dispute The Employer has a contract with Executive House, which is valued in excess of $57,000, to provide and install carpeting throughout the building. On Decem- ber 28, 1970, the Employer assigned the work to four of its employees, who are represented by the Teamsters. The Emplgyer has been a member of a multiemployer association of furniture dealers which has entered into successive collective-bargaining agreements with the Teamsters for over 30 years. Leonard Stern, the Employer's president, testified that on December 30, 1970, he was called on the tele- phone by Joe Poplowski, Respondent's business repre- sentative. According to Stern, Poplowski told him that he would picket the entire job, which involved subcon- tractors other than the Employer, and close it down if the Employer did not get his men off and use Respond- ent's men to install the carpeting. Stern also testified that Poplowski told him that pickets would be there within the hour. It appears that no picketing occurred. Stern also stated that Poplowski said that the Employer was giving him trouble again, mentioning the 1969 Whitehall store incident. There was testimony that on one occasion in 1969, the Employer subcontracted out the installation of carpeting at its own store in White- hall, Pennsylvania, using employees who were mem- bers of Respondent, as a result of Respondent's threats to stop the further building of that store if the Em- ployer did not use Respondent's members. Poplowski denied this testimony. John V. Fetchko, a carpet mechanic employed by the Employer and the Teamsters Union steward at the Em- ployer's Monessen store, testified that on December 30, 1970, he overheard a conversation between Poplowski and Albert Leone, another carpet mechanic employed by the Employer, in which Poplowski said that he was CARPENTERS, LOCAL 1759 535 going to have people on the jobsite to picket within an hour in order to close down the job and Poplowski also made reference to the Whitehall incident.' Poplowski testified that on December 30, 1970, he called Stern and said in substance that the Executive House project was within the jurisdiction of his Union, to which Stern replied, "Okay, I will pull the men off the job as of today. I will not let them go back until we can conclude whose jurisdiction this work is." Poplow- ski testified that thereupon he thanked Stern and hung up. At one point in his testimony, Poplowski denied making any threat to picket or telling Stern he better take the men off the job. However, at another point in his testimony, Poplowski said that he might have men- tioned to Leone that Respondent "would still have pickets on the job, but not that [Respondent] would use any force." Poplowski admitted that he told Respond- ent's steward, who was employed on the Executive House jobsite, that Poplowski would have pickets there within the hour on the jobsite. The parties stipulated that no labor organization has been certified by the Board to perform this work; the Employer has not been ordered to bargain with Re- spondent as the representative of the employees per- forming this work; and the disputed work has not been the subject of any grievance or award with respect to the parties involved in the instant proceeding. area considered by the Board in determining area prac- tice. Respondent also asserts that the area practice in the two-county area covered by the Employer's mul- tiemployer labor contract supports assignment of the disputed work to employees represented by itself. Re- spondent contends that reliance should not be placed on the terms of the collective-bargaining agreement as it only contains one mention of carpet layers and that is located on the last page of the contract. Respondent also relies on the fact that the Teamsters has never been certified to represent the Employer's employees nor has a Board election been held among them. The Teamsters, as stated at the hearing, contends that the fact that Respondent may be a craft union that generally represents carpet layers should not preclude assigning such work to the employees of the Employer represented by it who have, by ratifying the past con- tract, elected to be represented by it in matters regard- ing wages, hours, and conditions of employment with this particular Employer. Finally, the Teamsters con- tends that there is no basis for a 10(k) hearing as the employees it represents are regular employees of the Employer who have been in the employ of this com- pany for many years prior and subsequent to the assign- ment to them of the disputed work. C. Contentions of the Parties The Employer's position, as expressed at the hearing, is that its employees represented by the Teamsters should retain the work because of economy and effi- ciency derived from the fact that it pays its employees on an incentive basis while the employees represented by Respondent are hourly paid . It further claims that its employees are experienced carpet installers, are at least as skilled and efficient as the employees repre- sented by Respondent, and can perform the work in a safe manner. In addition, the Employer relies on its past practice, the area practice in the two-county area which is covered by the multiemployer labor agreement with the Teamsters to which it is a party , and the terms of the aforesaid agreement. Respondent's view , as expressed at the hearing, is that the employees represented by it are craftsmen and as such have greater expertise , knowledge, and experi- ence than the employees of the Employer represented by the Teamsters . Respondent also contends that the disputed work falls within its jurisdiction by virtue of the fact that its members, as employees of department stores and carpet dealers, have performed this work throughout western Pennsylvania , which should be the ' The record shows that Leone was to be the Employer's primary witness, but was unable to testify as he was hospitalized D. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated. As set forth previously, Stern and Fetchko testified that Re- spondent threatened to cause a work stoppage on the Executive House jobsite unless its demand was met that the Employer assign the installation of the carpeting to carpenters rather than to employees of the Employer represented by Teamsters . While denying that he di- rectly threatened Stern with picketing if he did not assign the work to Respondent 's members, Poplowski admitted that he told his own steward on the Executive House jobsite that he would have pickets on the jobsite within the hour and that he might also have told Leone, one of the employees of the Employer represented by the Teamsters , that Respondent "would still have pick- ets on the job.... " Before making a jurisdictional dispute determina- tion, the Board is not required to find that a violation of Section 8(b)(4)(D) did in fact occur, but only that reasonable cause exists to find such a violation. With- out ruling on the credibility of the testimony in issue, we conclude that there is reasonable cause for believing that a violation of Section 8(b)(4)(D) has occurred, and 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the dispute is properly before the Board for deter- mination.' E. 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 .' As the Board has stated , its determination in a jurisdictional dispute case is an act of judgment based upon commonsense and experience in the weighing of these factors.' The following factors are relevant in making a determina- tion of the dispute: 1. Collective-bargaining agreement The Employer, as the member of a multiemployer association, the Furniture Companies of the Monon- gahela Valley, has had collective-bargaining agree- ments with the Teamsters for over 30 years. The cur- rent contract provides that "Any employee who shall lay carpet shall receive the Repairmen's rate during the period when he is laying carpet." It is uncontradicted that the employeees of the Employer who were as- signed the disputed work and who spend 99 percent of their time installing carpeting, receive all the benefits of the collective-bargaining agreement.' Respondent has no contract with the Employer, nor has it ever sought to represent any employees of the Employer. 2. Company practice The Employer's president testified that in the past the Employer has consistently assigned all carpet in- stallation work to its employees represented by the Teamsters except when the Employer has been too busy to handle the work, and except for the one occa- sion mentioned above concerning the Whitehall store. At no time has the one company to which it has sub- contracted such work, whose employees are repre- sented by Respondent, done more than 5 percent of the Employer's carpet installation work. I Locals 138, 138A, 138B, 138C, and 138D, International Union ofOper- ating Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc), 149 NLRB 156, 158, 159 ' N L R B v Radio & Television Broadcast Engineers Union, Local 1212, International Brodieihood of Electrical Workers (Columbia Broadcasting System), 364 U S 573 4 International Association of Machinists (J A Jones Construction Com- pany), 135 NLRB 1402 ' When not installing carpeting these employees function as furniture repairmen 3. Area practice The Employer presented evidence that a majority of the carpet installation in the two-county Monongahela Valley area is done by the furniture companies in the Valley, whose employees, if they are unionized, are all represented by the Teamsters. Respondent presented evidence that its members, as employees of department stores and carpet dealers, have performed this work in nine counties in western Pennsylvania, including the county in which the Employer's store in question is located. Respondent also introduced testimony that the Employer and other members of its multiemployer as- sociation have subcontracted out carpet installation work to other nonfurniture dealers whose employees have been members of Respondent, that Respondent has 10 to 20 men daily in the Monongahela Valley area doing carpet installation work, and that about 25 per- cent of the carpet installation work in the Monongahela Valley area is done by its members. 3. Skills of the employees The employees of the Employer represented by the Teamsters have been performing this work regularly for over 30 years and the Employer is, as testified by its president, satisfied with the skills and safety perform- ance of its employees. Respondent presented evidence that it has a formal schooling program for apprentices that is registered with the Federal Department of Ap- prenticeship Training, Pennsylvania Department of Labor, and that its members are required to maintain 144 hours a year of related training, plus on-the-job training for a 4-year period. 4. Economy and efficiency factors The Employer's president testified that it is more economical and efficient to assign the disputed work to its own employees represented by the Teamsters, who are paid on an incentive yardage basis, than to assign the work to Respondent's members, who are paid on an hourly basis. Conclusion Based upon the entire record, and after full consider- ation of all relevant factors, we conclude that the work in dispute should be assigned to the employees em- ployed by the Employer and currently represented by the Teamsters, rather than to carpet layers represented by Respondent. We reach this conclusion relying on the Employer's assignment of the carpet installation work to the carpet mechanics who are part of its work force, the fact that the assignment is consistent with the Employer's past practice and the current collective- bargaining contract with the Teamsters; the Em- CARPENTERS, LOCAL 1759 537 ployer's satisfaction with the performance of its em- ployees; and the efficiency and economy of operations that will result from such assignment. In making this determination, we shall award the disputed work to the Employer's employees who are represented by the Teamsters, but not to that Union or to its members. In consequence, we shall also deter- mine that Respondent was not and is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the disputed work to its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and on the basis of the forego- ing findings and the entire record in this case, the Na- tional Labor Relations Board makes the following determination of dispute. A. Employees of Sam D Stern Furniture Company, Inc., currently represented by International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 872, are entitled to perform the following work: Installation of carpeting on the floors of Executive House in Washington, Pennsylvania. B. United Brotherhood of Carpenters and Joiners of America, Floor Coverers and Decorators, Local Union 1759, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Sam D. Stern Furniture Company, Inc , to assign all the above-described work to its members or to employees that it represents. C. Within 10 days from the date of this Decision and Determination of Dispute, United Brotherhood of Car- penters and Joiners of America, Floor Coverers and Decorators, Local Union 1759, AFL-CIO, shall notify the Regional Director for Region 6, in writing, whether it will refrain from forcing or requiring Sam D. Stern Furniture Company, Inc., by means proscribed by Sec- tion 8(b)(4)(D) of the Act, to assign the work in dispute exclusively to individuals that it represents, rather than to employees of Sam D. Stern Furniture Company, Inc., represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 872.