Carpenters, Local 525

CARPENTERS, LOCAL 525 327 United Brotherhood of Carpenters and Joiners of America, Local 525, AFL-CIO and Ohio Valley Builders Exchange, Inc. and Engstrom & Wynn, Inc. and Laborers Local No. 134, Laborers International Union of North America, AFL-CIO. Case 9-CD-235 November 15, 1972 and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Respondent and the Laborers are labor organiza- tions within the meaning of Section 2(5) of the Act. DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Ohio Valley Builders Exchange, Inc., on behalf of Engstrom & Wynn, Inc., herein called the Employer, alleging that United Brother- hood of Carpenters and Joiners of America, Local 525, AFL-CIO, herein called Respondent, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer William M. Kohner on September 6, 1972. The Employer, Respondent, and Laborers Local No. 134, Laborers International Union of North America, AFL-CIO, herein 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. Thereafter, briefs were filed by the Employer and the Laborers which 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is a West Virginia corporation engaged in the business of general contracting with its main office in Wheeling, West Virginia. The Employer has the general contract for an addition to the Coshocton County Memorial Hospital located on Orange Street, Coshocton, Ohio, at which site it annually receives goods valued in excess of $50,000 from points directly outside the State of Ohio. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act III. THE DISPUTE A. Background and Facts On November 15, 1971, the Employer commenced the construction of a three-story addition to the Coshocton County Memorial Hospital in Coshocton, Ohio. By May 1972, the form work for the super- structure had been completed and on May 25, 1972, the Employer assigned to laborers the final stripping of column forms which supported the roof concrete slab. On that day, the Carpenters business agent, Dale Craddock, demanded that the Employer's job superintendent, G. Eric Martin, assign the final stripping to carpenters. On June 2, 1972, Carpenters Steward Joe Chaney told Martin that the stripping work belonged to carpenters and that they would shut the job down if they did not get that work. Martin thereupon telephoned Craddock who con- firmed Chaney's threat. Furthermore, Martin testi- fied that at a meeting of the Coshocton County Commissioners on June 12, 1972, Craddock stated that either the carpenters be assigned the stripping or no one would,work. Then, on June 15, 1972, the Employer assigned the stripping of flat arch forms to laborers and again, later that day, according to Martin, Craddock said that if carpenters were not assigned the work, a picket line would appear the next day. On June 20 and 21, the carpenters picketed with signs which read, "Carpenters on Strike." On both days, members of the Laborers crossed the picket line to work while other crafts refused to do so. On June 22, 1972, the carpenters returned to work and no picketing has occurred since. B. The Work in Dispute The work in dispute involves the final stripping of wooden forms for columns between the second floor and the roof of the building, the final stripping of wooden forms for beam sides and beam bottoms at the roof slab level, and the final stripping of steel forms for shoring used to support beam forms and slab forms. All the stripping involved herein is considered by the Employer to be "final" stripping since the forms are not to be reused on this project but will be used on some other unknown project at some unknown time in the future. 200 NLRB No. 50 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Contentions of the Parties The Employer contends that the work be left, as assigned, to employees represented by the Laborers, that this assignment complies with a 1949 agreement between the Laborers and Carpenters as well as with the Employer and area practice, and that the assignment is consistent with the safe and economi- cal completion of the job. The Laborers position is the same as that of the Employer. The Carpenters contends that the Employer had agreed to assign the work under a 1966 agreement between the Carpenters and the Laborers and that the 1949 agreement, supra, was not mentioned as the basis for the assignment. 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. As noted, the record disclosed that Craddock, the Carpenters business agent, made various demands that the Employer reassign the work to carpenters and threatened to shut the job down if that assignment was not made. Furthermore, the facts show that members of the Carpenters picketed the jobsite for 2 days. Based on the foregoing and the record as a whole, we find that an object of the picketing was to force or require the Employer to assign the disputed work to employees represented by Respondent. Accordingly, and without ruling on the credibility of the testimony in issue, we are satisfied that there is reasonable cause to believe a violation of Section 8(b)(4)(D) did occur. It was stipulated at the commencement of the hearing that the parties had been unable to adjust the dispute voluntarily and that the Employer is not bound to the National Joint Board. We therefore find that this dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified as collective-bargaining represent- ative for a unit of the Employer's employees. Although the Employer had contracts in effect with both Unions at the time of the dispute, neither contract is helpful in determining which of the crafts is entitled to perform the disputed work. The Employer and the Laborers argue that a 1949 "Memorandum on Concrete Forms" between the Carpenters and Laborers Internationals supports the Employer's assignment. While that agreement does state that "stripping of forms which are not to be re- used" is to be assigned to laborers, the agreement, on its face, does not disclose whether the clause applies to forms which, as here, are not to be reused at the site but elsewhere at a later time. On the other hand, the Carpenters contends, but the Employer denies, that the Employer had assigned the work under a 1966 agreement, which provides that the stripping be done by equal numbers of carpenters and laborers; however, the record disclosed that this 1966 agree- ment was canceled in 1970, prior to the controversy herein. We therefore find that neither the contracts nor the agreements are useful in making our determination herein. 2. Employer and area practice It is uncontradicted that the Employer, at least for the 5-1/2 years Martin has been superintendent, has consistently assigned the work in dispute to laborers. In addition, the Laborers regional manager testified that the general practice in the Ohio area is to assign such work to laborers. The Employer's and the Laborers witnesses testified that the 1949 memo has consistently been interpreted as supporting the Employer's assignment herein, and the Employer and Laborers introduced various National Joint Board awards which corroborate this interpretation. The Employer and area practice, therefore, favor the Employer's assignment. 3. Skills, efficiency, and economy of operation The Employer's superintendent, Martin, testified that the laborers possess the requisite skill to perform the work and are supervised by a foreman who has been in the employ of the Employer for 25 years and has had extensive experience in the supervision of the work in dispute. As a result, the Employer argues that the utilization of laborers to perform the work would be more efficient and economical. We therefore find that these factors favor the Employer's assignment. CARPENTERS, LOCAL 525 329 CONCLUSIONS Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by the Laborers are entitled to perform the work in dispute. This assignment is consistent with the initial assignment, the Employer and area practice, and the skills, efficiency, and economy of operation. In making this determination, we are awarding the work in question to employees em- ployed by the Employer who are represented by the Laborers, but not to that Union or its members. The present determination is limited to the particular controversy 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Engstrom & Wynn, Inc., who are currently represented by Laborers Local No. 134, Laborers International Union of North America, AFL-CIO, are entitled to do the final stripping of wooden forms for columns between the second floor and the roof, the final stripping of wooden forms for beam sides and beam bottoms at the roof slab level, and the final stripping of steel forms for shoring used to support beam forms and slab forms at the Coshocton County Memorial Hospital in Coshocton, Ohio. 2. United Brotherhood of Carpenters and Joiners of America, Local 525, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Engstrom & Wynn, Inc., to assign the above work to its members or employees whom it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organiza- tion listed in the preceding paragraph shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring Engstrom & Wynn, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members or employees whom it represents rather than to employees of Engstrom & Wynn, Inc., represented by Laborers Local No. 134, Laborers International Union of North America, AFL-CIO.