United Brthd. of Carpenters, Local 626

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Local 626 and Cassidy Plastering Com- pany and Local Union No. 108, Wood, Wire and Metal Lathers, AFL-CIO. Case 4-CD-285 July 27, 1972 member of Delaware Contractors Association, a multiemployer association representing Cassidy and other employers, including Lowe Brothers, for purposes of collective bargaining. Lowe Brothers meets the Board's direct inflow and outflow stand- ards. DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Cassidy Plastering Company (herein referred to as Cassidy) on February 9, 1972, alleging that United Brotherhood of Carpenters and Joiners of America , Local 626 (herein referred to as Carpenters or Local 626), has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work described below to employees represented by Carpenters, rather than to members of Local Union No. 108, Wood, Wire and Metal Lathers, AFL-CIO (herein referred to as Lathers or Local No. 108). A hearing was held before Hearing Officer Harold Bernard, Jr., on April 18 and 19 , 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 . All parties filed briefs in support of their positions and they have been duly considered. 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 made by the Hearing Officer at the hearing and finds that they are free from prejudicial error . They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Cassidy is a plastering company engaged in the construction industry specializing in the application of lath, plaster, and sheetrock on building interiors. During the past year it performed services in excess of $63,000 pursuant to a subcontract with John E. Heily and Sons, Inc., in the construction of a building for Atlas Chemical Industries, Inc., which company meets the Board's direct outflow and direct inflow standards. Cassidy concedes, and we find, that it is an employer engaged in commerce within the meaning of the Act. In addition, Cassidy is a 198 NLRB No. 74 Ii. THE LABOR ORGANIZATIONS We find that Lathers Local No. 108, and Carpen- ters Local 626 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The disputed work involves the installation of sheetrock (dry-wall) on metal studs in the Walden Book Store at the Concord Mall construction site in Wilmington, Delaware. B. Background John Cassidy assigned the work of hanging sheetrock at the Walden Book Store to employees represented by Lathers in late January 1972. On Friday afternoon, January 28, Cassidy received a telephone call from his material supplier informing him that the supplier was prevented from unloading Cassidy's materials on the construction site. On Monday, Cassidy arrived on the jobsite with John Lennon, business agent for the Lathers Local No. 108, and encountered Frank Ryan, job superintend- ent. Although Ryan denies the conversation, Cassidy testified that Ryan informed him that John Wilcox, shop steward for Carpenters, had prevented delivery of Cassidy's materials. Cassidy then confronted Wilcox and asked why he had prevented the unlaoding of his material. Both Cassidy and Lennon testified, over Wilcox's denial, that Wilcox then said, "if you bring Lathers on this job you're going to have trouble." On February 7, Cassidy and eight lathers arrived on the jobsite to begin work on the project. About 3 hours later, Alvin Rubenstein, cousin of Mark Rubenstein, owner and general contractor of Mall structures, approached Cassidy's employees and advised them to vacate the premises immediately, under threat of arrest by Delaware State Police for trespass. Cassidy testified that Alvin Rubenstein referred to a threat by Carpenters to be out "sick" if Cassidy was not removed. Cassidy then pulled his men off the job, and the sheetrock work was completed by another subcontractor using carpenters represented by Local 626. UNITED BRTHD. OF CARPENTERS, LOCAL 626 447 C. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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. Testimony on the record, if credited, would establish that it was reported to Cassidy that his supplier was prevented by Carpenters from unload- ing his materials on January 28, and that thereafter, when Cassidy sought an explanation for this action from Carpenters, the latter threatened "trouble" in the event that the disputed work were assigned to lathers. On this basis, we are satisfied and find, noting a previous dispute between the same unions over similar work,) that the record supports a finding of reasonable cause to believe that the Act has been violated and that this dispute is properly before the Board for determination pursuant to Section 10(k) of the Act.2 ' D. Contentions of the Parties Cassidy urges that the disputed work be assigned to lathers because they have always performed this particular kind of work to its satisfaction; Cassidy has a substantial practice of assigning such work to lathers; the lathers are well-trained in the skill of hanging dry-wall; and lathers perform the work more economically and efficiently than carpenters. Lathers insists that the hanging of dry-wall is traditionally performed by members of that union and takes a position consistent with that urged by Cassidy. Carpenters contends that the nationwide industry practice is to assign such work to carpenters, that use of lathers will not, in fact, result in more economical and efficient performance than produced through the use of carpenters, and that the tradition, skills, and tools involved in the work in dispute are exclusively possessed by carpenters. E. Merits of the Dispute 1. Certification and contracts The record indicates that neither union has been certified by this Board as collective-bargaining representative for Cassidy's employees. However, Cassidy has been, and is now a member of the i The record discloses that the local unions party to the present proceeding were involved in a previous dispute over the hanging of dry-wall which resulted in a 3-day work stoppage by Carpenters That dispute was settled on January 28, 1971, by a determination of the National Joint Board for the Settlement of Jurisdictional Disputes , Building and Construction Industry , that the members of the Lathers received the first assignment of work and that the Carpenters should honor the employer's choice There is no contention, however, and it does not appear that Cassidy is party to any agreement to settle similar disputes in this fashion Delaware Contractor's Association, Allied Division (herein referred to as DCA), an association of employers which is authorized by Cassidy and other employers to enter into collective-bargaining agree- ments with labor organizations on their behalf. Pursuant to this arrangement, Cassidy has entered into a collective-bargaining agreement with Lathers Local No. 108 through the agency of the DCA. Under section XI of that agreement, Cassidy is specifically bound to assign all jobs consisting of the hanging of gypsum board to lathers. Although Carpenters contends that it has a similar contract with DCA, binding upon Cassidy, Cassidy has never employed carpenters covered by any such agreement, and uncontradicted testimony shows that the DCA enters into agreements with all the building trades, and that the particular agreements come into effect only when a member employer utilizes the craft covered by the contract. It is also noted that although section XI of the Lathers agreement specifically requires the assignment of gypsum board work to employees covered by that contract, there is no specific provision in the Carpenters agreement covering the work in dispute. We find, therefore, that Cassidy's assignment of the disputed work to lathers is consistent with, and supported by, its collective- bargaining agreement with Lathers Local No. 108. 2. Employer's practice Cassidy has been in the construction industry for 13 years. It has always employed lathers to do the particular work in dispute, and has at all times been satisfied with the quality of work performed by them. Cassidy has never employed carpenters to perform the disputed work. 3. Agreement between unions The evidence establishes that there is a status quo agreement between both unions, characterized as an "interim understanding," whereby the union that has first been assigned the work of the type in issue here will be entitled to perform the work, pending an overall resolution by the unions involved at the International level. Although Cassidy is not a member or participant in any procedure for resolu- tion at the International level, and though it does not appear that such a resolution has been made in the instant case, the agreement is consistent with award 2 In accordance with established Board policy, we reject the contention of the Carpenters that this dispute is moot because the job involved has been completed Although we do not find infra, a sufficient likelihood that this dispute will apse again to warrant a broad determination, we cannot rule out such a possibility Cement Masons' Local Union No 524 (Tobasco Prestressed Concrete Company), 163 NLRB 609, 613, Local Union 224 and Local Union 830, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Bernard Pipe Line Company), 152 NLRB 902,910 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the job to lathers as lathers received the original assignment. 4. Skills and training It is not contended that the skill involved in the installation of sheetrock to metal studs is difficult to acquire. Because the evidence discloses that both unions have training programs sufficiently covering the installation of dry-wall, we cannot conclude that either union is more competent to perform the disputed work on the basis of "skill" or "training." dispute in favor of Cassidy's employees represented by Local No. 108. Although the Lathers and Cassidy see a determination coextensive with the jurisdiction of Carpenters Local 626 , the record provides no basis for concluding that it is likely that similar disputes will occur in the future. Accordingly, our determina- tion is limited to the controversy which gave rise to the present proceeding . In making this determina- tion, we are awarding the work in issue to Cassidy's employees represented by Local No. 108 and not to Lathers or its members. 5. Efficiency and economy The record in this case provides no basis for concluding that employees represented by either labor organization could perform the disputed work in more economical or efficient fashion, although, as indicated above, the Employer has historically assigned this work to lathers and is satisfied with their performance. CONCLUSIONS Although the record does not support a definitive finding that either union is more skilled in the performance of the disputed work, or that either union can perform the job more economically or efficiently, nevertheless, the past practice and origi- nal assignment of Cassidy weigh heavily in favor of awarding the work to the employed members of Lathers Local No. 108. These factors, coupled with consideration of the collective-bargaining agreement between Cassidy and Lathers Local No. 108, particu- larly section XI, and the status quo agreement between the International Unions, lead to the conclusion that the work in dispute should be awarded to Cassidy's employees, represented by Lathers Local No. 108. We thus determine the 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 makes the following determination of dispute. A. Employees of Cassidy Plastering Company represented by Local Union No. 108, Wood, Wire and Metal Lathers are entitled to perform the work of installing sheetrock on metal studs in the Walden Book Store at the Concord Mall construction site in Wilmington, Delaware. B. United Brotherhood of Carpenters and Joiners of America, Local 626, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Cassidy Plastering Company to assign the above-described work to employees represented by it. C. Within 10 days from the date of this Decision and Determination of Dispute, United Brotherhood of Carpenters and Joiners of America, Local 626, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring Cassidy Plastering Company, to assign the work in dispute to its members rather than employ- ees of Cassidy Plastering Company.