Carpenters, Local 1489

CARPENTERS, LOCAL 1489 United Brotherhood of Carpenters and Joiners of America, Local 1489 and James J. Martin & Sons and John J. Donnelly, Inc. and Local No. 53, The Wood, Wire and Metal Lathers International Union, AFL-CIO. Case 4-CD-278 May 25, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , follow- ing charges filed by James J . Martin & Sons, hereinafter called Martin or Employer, alleging that United Brotherhood of Carpenters and Joiners of America, Local 1489 , hereinafter called Carpenters, .violated Section 8(b)(4)(1 ) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Martin to assign certain work to employees represented by the Carpenters rather than to employees represented by Local No. 53, The Wood, Wire and Metal Lathers International Union, AFL-CIO, hereinafter called Lathers. Pursuant to notice, a hearing was held before Hearing Officer Charles E. Mitchell on January 25, 1972. All parties appeared at the hearing and were afforded opportunity to be heard , to examine and cross-examine witnesses , and to adduce evidence bearing on the issues . Thereafter, briefs were filed by the Employer, the Carpenters, and the Lathers. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that Martin is a New Jersey corporation and is engaged in construction work as a lathing and plastering contractor. During the past year, it purchased goods valued in excess of $50,000 from suppliers outside the State of New Jersey. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and we also find that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED 93 The parties stipulated, and 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. Facts John J. Donnelly, Inc., hereinafter called Donnelly, is the general contractor for the construction of a discount chain store, called a Clover Store, in Cinnaminson, New Jersey. Donnelly subcontracted to Martin the furnishing and erection of the metal stud work, the veneer plaster base, and the veneer plaster work which entails the application of a thin or "skin" coat of veneer plaster to the veneer plaster base by hawk and trowel. Martin, by virtue of its membership in the Master Plasterers Company, a contractors' association, is a party to a collective- bargaining agreement with the Lathers which de- scribes the unit work to be the installation of all wall or ceiling systems which are to "receive metal lath, rock lath or other material for the application of plaster or other sprayed on wet material . . . ... The Employer began work on the Donnelly project on November 29, 1971, by assigning four of its employees who were members of the Lathers to the task of erecting metal studs and attaching veneer plaster base thereto. On December 1, all five carpenters, who were employed by Donnelly, walked off the job and subsequently, on December 6, 1971, the Carpenters, which had made similar demands in the past, demanded from Donnelly, through its business agent, Hedlund, that the work of erecting the metal studs and veneer plaster base be assigned to employees represented by the Carpenters. They remained off the job until December 30, 1971, 1 day prior to the entry of a 10(1) injunction in the United States District Court for the District of New Jersey. Hedlund indicated to Donnelly that inasmuch as the Carpenters was no longer a party to the National Joint Board for the Settlement of Jurisdictional Disputes, the Joint Board would be incapable of resolving the work in dispute since any decision would have no effect. In this connection the record indicates that the Employer is not a party to any agreement calling for the submission of jurisdictional disputes to the National Joint Board. B. The Work in Dispute As described in the Notice of Hearing issued by the Regional Director on January 7, 1972, the work in dispute involves "the application of veneer plaster base." More specifically, this work may be described 197 NLRB No. 19 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a metal stud system with a veneer board containing a "high porosity paper" to which a thin coat of veneer plaster is attached. The Carpenters claims only the work of installing the metal studs and veneer plaster base. C. Contentions of the Parties The Employer and the Lathers take the position that the Employer's assignment of the disputed work was justified by the Employer's collective-bargaining agreement with the Lathers, the Employer's past practice, and the fact that the work is performed more economically and efficiently when done by the Employer's own crew of employees represented by the Lathers. The Employer and Lathers further contend that the work in dispute concerns the application of wet plaster, that the veneer plaster base is not a finished surface such as prefinished drywall, and that employees represented by the Lathers by virtue of area practice are entitled to perform the work. Moreover, the Employer contends that any signed agreement or statement in which it pledged to award work to the carpenters referred solely to drywall, as opposed to wet plaster work, and it is agreeable to using the employees represented by the Carpenters if, in the future, drywall work is required. However, according to the Employer, the work in question is not drywall or finished materials, but is specifically fabricated to receive plaster and is properly assigned to the employees represented by the Lathers rather than to employees represented by the Carpenters. In addition, the Employer claims that based on such considerations as integration of operations, skills, safety, and availability of workers employees represented by the Lathers should be awarded the work. The Carpenters, on the other hand, contends that the matter is not properly before the Board since the work stoppage was occasioned by unsafe and unsanitary working conditions and not in further- ance of its admitted demand for the work in dispute. Accordingly, it urges that Section 8(b)(4)(D) has not been violated and that the instant 10(k) proceeding should be quashed. In furtherance of this latter position, the Carpenters also claims that, in any event, its members are entitled to the work in dispute by reason of area practice in Burlington County, New Jersey, and by virtue of a signed writing executed by Martin wherein it pledged to award the disputed work to the carpenters. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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 and that there is no agreed-upon method for the voluntary adjustment of the dispute. Notwithstanding the Carpenters contention that the work stoppage was precipitated by the major safety and sanitation problems on the job, we find, on the basis of the record as a whole, that an object of the carpenters' strike was to force or require Martin to assign the disputed work to employees represented by the Carpenters. Thus we note that at a December 6, 1971, meeting between Donnelly and Hedlund, Carpenters business agent, Hedlund stated that the carpenters had walked off the job because the lathers were doing their work and that Donnelly had "hired that s.o.b. Martin" (Employer). Hedlund further stated that the carpenters would not return to work until they were assigned the disputed work. Rejecting Donnelly's offer to talk to the Employer in an effort to solve the problem, Hedlund replied that "Martin would probably take the case or file a charge with the NLRB." However, Hedlund further stated that if the Employer did file a charge with the NLRB, he (Hedlund) "had other causes on the job for the Carpenters to walk off." Moreover, we do not find merit in the contention of the Carpenters that all of the parties are bound to the same voluntary method of adjustment. In this connection, the record shows the Employer was not a signatory to the agreement between Donnelly and the Carpenters and there is no showing that Employer has voluntarily agreed to be bound by a National Joint Board proceeding. Additionally, as noted above, the Carpenters itself is no longer a party to the National Joint Board, so that the Joint Board's resolution would have no effect. 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 at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties were bound. Therefore, the matter 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 disputed work after giving due consideration to and balancing all relevant factors. The following factors are relevant in making a determination of the dispute before us. 1. The collective-bargaining agreement The record shows that the Employer's collective- bargaining history has been exclusively with the Lathers for at least 25 years. The Employer's current CARPENTERS, LOCAL 1489 95 agreement with the Lathers provides that employees represented by the Lathers will perform the work involving the erection of metal studs and the application of gypsum board, both to receive wet plaster. As the signed writing by the Employer pledging certain work to the carpenters clearly states that it is applicable to "any drywall work installed," it lends no support to the Carpenters claim for the disputed work. 2. Area and company practices The Employer has always assigned work of the kind in dispute to its employees who are represented by the Lathers. The Employer introduced into evidence a list of more than 40 jobs throughout southern New Jersey and southeastern Pennsylvania on which it assigned the disputed work to employees represented by the Lathers. There is evidence that employees represented by the Lathers have per- formed work of this or a similar type for other employers in other areas. employees who are represented by the Lathers are entitled to perform the disputed work. We reach this conclusion based upon the Employer's assignment of the disputed work to its employees; the fact that the assignment is consistent with the Employer's past practice and its current collective- bargaining agree- ment with the Lathers; the fact that it is not clearly inconsistent with area practice; the fact that the employees represented by the Lathers possess the requisite skills to perform the work; and the fact that such assignment will result in greater efficiency, safe- ty, economy, and continuity of operations. According- ly, we shall determine the dispute before us by award- ing the work in dispute at the Clover Store project in Cinnaminson, New Jersey, to the Employer's em- ployees represented by the Lathers, and not to the Lathers Union or its members. In consequence, we also find that the Carpenters 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 employees represented by it. 3. Efficiency and economy Under the agreement between the Employer and the Lathers, the Employer is entitled to assign a variety of other work to its employees. It is common practice for the Employer to use his employees to perform the work in dispute for a few hours and, if they run out of such work, to transfer those employees to other work on the job until more work similar to that in dispute here becomes available. To assign the disputed work to employees represented by the Carpenters would cause the Employer economic loss due to the downtime involved. 4. Skills and safety In the years which the Employer has performed metal stud work, veneer plaster base, and veneer plaster jobs, employees represented by the Lathers have demonstrated to the satisfaction of the Employ- er that they possess the knowledge and skill necessary to do the work. The lathers receive apprenticeship training on the work in dispute. The carpenters have no similar apprenticeship program. Conclusions Upon consideration of all pertinent factors in the entire record, we conclude that the Employer's 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 Dis- pute: 1. Employees of James J. Martin & Sons of Camden, New Jersey, who are represented by Local No. 53, The Wood, Wire and Metal Lathers International Union, AFL-CIO, are entitled to perform the " . . . furnishing and the erection of the metal stud work, the veneer plaster base, and the veneer plaster work" for interior partition walls and hung ceilings at the Clover Store project in Cinna- minson, New Jersey. 2. United Brotherhood of Carpenters and Joiners of America, Local No. 1489, of Burlington, New Jersey, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring the Employer, by means pros- cribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by the Carpenters, rather than to employees represented by the Lathers.