Local 399, Carpenters

LOCAL 399, CARPENTERS 315 Local No. 399, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Clarence B. Haney Mason Contractors, Inc. and Laborers' International Union of North America, Local Union No. 569, AFL-CIO. Case 22-CD-200 June 7, 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 a charge filed by Clarence B. Haney Mason Contractors, Inc., hereinafter called the Employer, alleging that Local No. 399, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter called Carpenters, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed 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. 569, AFL-CIO, hereinafter called Laborers. Pursuant to notice, a hearing was held before Hearing Officer Joel S. Selikoff on January 4, 13, 14, and 31 and February 1, 1972. 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, beefs were filed by the Employer, Carpenters, and Labor- ers. 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. The Board has considered the entire record in this case, including the beefs, and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Clarence B. Haney Mason Contractors, Inc., is a Pennsylvania corpora- tion engaged in the furnishing of nonretail building and construction masonry services, having its princi- pal office and place of business at 1745 Eaton Avenue, Bethlehem, Pennsylvania. The Employer furnishes these services at various construction jobsites inl the States of New Jersey and Pennsylvania, including the i site for; the construction of the Northeast Consumer Plant for Mobil Chemical Company, Plastics Division, at Mansfield Township, Warren County, New Jersey. During the past 12 months, the value of masonry services furnished by the Employer directly to customers located outside the State of Pennsylvania exceeded $50,000. During the same period, the Employer purchased goods and services valued in excess of $50,000, which were shipped directly to it from outside the State of Pennsylvania. Accordingly, we find that Clarence B. Haney Mason Contractors, 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. II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Carpenters and Laborers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The work dispute occurred at the construction site of the Northeast Consumer Plant of the Mobil Chemical Company, Plastics Division, in Warren County, New Jersey. Louis Hajdu, Inc., is the general contractor for the industrial building. Hajdu subcon- tracted the masonry work to the Employer. In order to perform the subcontract the Employer was required to erect and dismantle both metal tubular and self-rising scaffolding. The work in dispute here involves scaffolding rising above 14 feet in height. When the masonry work began in September 1971, the Employer used laborers to erect the initial scaffolding which was less than 14 feet in height. At approximately this same time, the Carpenters busi- ness agent, Wallace Whiteford, had conversations with the Hajdu job superintendent, Joseph Vangeli, and the Employer's jobsite foreman, Richard Whit- ed, during which Whiteford demanded that the disputed work, scaffolding over 14 feet high, be awarded to the Carpenters. Thereafter, Whited hired Fred Koeck, a member of the Carpenters, for 2 days, October 6 and 7, to work with• several laborers to erect scaffolding rising above 14 feet. After 2 workdays Whited laid off Koeck and laborers were used exclusively to perform the disputed work. On Saturday, October 23, 1971, between 7 and 9 a.m., 15 members of the Carpenters, carrying signs reading "On Strike" picketed the jobsite. On Novem- ber 1, 1971, another work stoppage by members of the Carpenters took place. The record shows that the 197 NLRB No. 49 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of these actions was to require the Employer D. Applicability of the Statute to assign the disputed work to members of the Carpenters. B. The Work in Dispute The work in dispute here involves the erection and dismantling of both metal tubular and self-rising scaffolding (the latter commonly referred to as Morgan scaffolding) rising to heights above 14 feet at the Mobil Chemical Company construction site in Warren County, New Jersey. The Carpenters claim only that work involving the erection and disman- tling of scaffolding over 14 feet high. C. Contentions of the Parties The Employer contends that the laborers possess the requisite skills and it has been its practice to have employees represented by Laborers perform the disputed work. The Employer further avers that its collective-bargaining agreement with the Laborers calls for members of the Laborers to do the work; and that it would be inefficient and uneconomical for the Employer to hire carpenters since it has no carpenters on its payroll nor are carpenters needed in the ordinary course of the masonry business. Finally, the Employer denies that it is bound by the award of the National Joint Board. The Carpenters contends that the Employer as- signed the work to the Carpenters and became bound by the Carpenters collective-bargaining agreement when Richard Whited, the Employer's jobsite fore- man, hired Fred Koeck, a member of the Carpenters. It further contends that the Carpenters collective- bargaining agreement obligates the Employer to the jurisdiction of the National Joint Board and that the National Joint Board awarded the disputed work to the Carpenters on November 15, 1971. Finally, the Carpenters contends that safety and skill factors, area and industry practice, and the efficiency and economy of ; the' Employer's operation favor it. The Laborers predicates its claim for the disputed work on its collective-bargaining agreements with the Employer, on its contention that laborers possess the requisite skills and can more efficiently and economi- cally perform the work. It also contends that area practices and the assignment of the Employer favor it. Finally, it denies that it is bound by a National Joint Board award relative to the disputed work here. i We find wholly without ment the Carpenters contention that the Employer became bound by the Carpenters collective-bargaining agree- ment, which obligates parties thereto to submitlunsdictional disputes to the National Joint Board, by virtue of the fact that the Employer hired a member of the Carpenters to work for 2 days on the project involved herein Further, there is no other basis in the record for concluding that the Employer is bound by any procedure for resolving jurisdictional disputes The charges herein allege a violation of Section 8(b)(4)(D) of the Act. The parties stipulated that on "Saturday, October 23rd., 1971, between the hours of 7:00 and 9:00 a.m., at thejob site ... approximately fifteen members of Carpenters picketed with signs reading `On Strike.' The picketing was conducted for the purpose of requiring [Employer] to assign the disputed work to members of Carpenters. . . ." On the basis of the entire record and the stipulation, we conclude 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 under Section 10(k) of the Act.' E. The Merits of the Dispute As the Board stated in J. A. Jones Construction Company,2 we shall determine the appropriate assignment of disputed work in each case presented for resolution under Section 10(k) of the Act only after taking into account and balancing all relevant factors. 1. Collective-bargaining agreements The Employer is a member of the Mason Contrac- tors Association of America, which has a current collective-bargaining agreement with the Laborers' International Union of North America, with which the Laborers is affiliated. The Employer is also a party to a collective-bargaining agreement with the Laborers. Pursuant to the aforesaid agreements, the Employer has assigned employees represented by Laborers to perform the erection of the scaffolding. The Employer does not have a contract with the Carpenters. The collective-bargaining agreements between the Laborers and the Employer are suffi- ciently broad to cover the disputed work. According- ly, we find that the collective-bargaining agreements favor the Laborers. 2. Employer preference The Employer assigned the work in dispute,3 and prefers an award, to employees represented by the Laborers. This factor favors an award to employees represented by the Laborers. We find, accordingly, and without regard to any other considerations, that no agreed-upon method exists for resolving the dispute herein 2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 3 The hiring of one carpenter for 2 days did not constitute an assignment to the Carpenters. LOCAL 399, CARPENTERS 317 3. Economy and efficiency of operation The Employer contends that laborers can perform the disputed work more economically and efficiently than carpenters. The record shows that the metal tubular scaffolding is erected as the masonry work progresses and that the time spent erecting the scaffolding is minimal. On the other hand, Morgan scaffolding is erected at one time and is raised and lowered at different intervals as the work of the masons progresses.4 Therefore, laborers assigned the work are also available to assist the masons, performing such tasks as stacking bricks and mixing mortar. Moreover, the use of carpenters on scaffold- ing over 14 feet high would necessarily require that the Employer hire carpenters, there being none presently on the Employer's payroll. Consequently, hiring carpenters to erect scaffolding would result in the accumulation of idle time and increased costs during the time the masonry work is being done. Accordingly, we find that economy and efficiency of the Employer's operation favors the assignment of laborers to perform the disputed work. 4. Skills and work involved In support of its assertion that carpenters possess skills and training for the work here in dispute which laborers do not, the Carpenters presented testimony which suggests that various Federal and state safety codes are not being complied with in the erection of scaffolding at the construction site. Certainly the safe construction of scaffolding is important, but there is no showing that any violations of safety standards which may here exist is attributable to the differing skills of carpenters and laborers. On the basis of the entire record, we are not persuaded that skills peculiar to carpenters are required in the erecting and dismantling of scaffolding or that laborers are not themselves qualified and competent to do the work. Rather, we find that laborers and carpenters both possess the requisite skills to perform the disputed work. Accordingly, we find that this factor favors neither the Laborers nor the Carpenters. 5. Area practice The record presents a mixed picture about the area practices relative to the disputed work. Apparently general contractors use carpenters to erect and dismantle scaffolding. Masonry subcontractors, on the other hand, use laborers exclusively on approxi- mately 50 percent of the jobs involving the disputed work and mixed crews (80 percent laborers and 20 4 The Carpenters does not claim the work of operating the Morgan scaffolding after its erection , which work operation is done by the Laborers here percent carpenters) on the remaining jobs. Louis Hajdu, the general contractor for the. Mobil job, testified that a "horse-trade" practice prevails; i.e., masonry subcontractors use carpenters when pres- sured to do so. The Employer, a masonry subcon- tractor, has used carpenters on only one other job in Warren County in the past 5 years. While the area practice by masonry subcontractors relative to the disputed work is not uniform, it tends to show that laborers perform such work for masonry subcontrac- tors more than carpenters. Accordingly, we find that, while area practice does not unequivocally require an award of the disputed work to the Laborers, it tends to support such an award. Other factors considered by the Board in jurisdic- tional dispute cases provide little assistance in determining the instant dispute. Neither of the Unions involved here has been certified by the Board nor is there evidence indicating that a Board certification covers the disputed work. The National Joint Board decision, relied on by the Carpenters in support of its claim, is not binding on the Employer, who as noted has not agreed to be bound by the procedures or decisions of the Joint Board.5 Conclusions In each case where a factor favored the assignment of the disputed work to employees represented by one of the parties, we have found that it favored the assignment of work to employees represented by the Laborers. Thus, on the record we find no compelling reason for disturbing the Employer's assignment of the work to employees represented by the Laborers. In making this determination, we are awarding the work in question to employees represented by the Laborers, but not to that Union or its members. Our present determination is limited to the particular dispute which gave rise to this proceeding. 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 Clarence B. Haney Mason Contractors, Inc., who are currently represented by Laborers' International Union of North America, Local Union No. 569, AFL-CIO, are entitled to perform the work of erecting acid dismantling of both metal tubular and self-rising/scaffolding (commonly referred to as Morgan scaffolding) used by Haney at 5 The parties stipulated that neither the Employer nor the Laborers received prior notice of the National Joint Board proceeding nor did they participate therein 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Mobil Chemical Company construction site, Warren County, New Jersey. 2. Local No. 399, United Brotherhood of Carpen- ters 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 Clarence B. Haney Mason Contractors, Inc., to assign the above-de- scribed scaffolding work to carpenters represented by Local No. 399, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 3. Within 10 days from the date of this Decision, and Determination of Dispute, Local No. 399, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Region 22, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to carpenters represented by Local No. 399, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, rather than to employees represented by Laborers' International Union of North America , Local Union No. 569, AFL-CIO.