Carpenters of Northwestern Montana

CARPENTERS OF NORTHWESTERN MONTANA 239 Carpenters District Council of Northwestern Montana, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Lilienthal Insulation Com- pany) and Cascade Employers Association, Inc. Case 19-CD-207 March 7, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Cascade Employers Associa- tion, Inc., on behalf of Lilienthal Insulation Compa- ny, hereinafter referred to as the Employer, alleging that Carpenters District Council of Northwestern Montana, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter referred to as Carpenters or the Union; 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 insulation installa- tion work to employees represented by Carpenters rather than to the unrepresented employees of Lilienthal Insulation Company who were working under a valid apprenticeship agreement with the State of Montana. Pursuant to notice, a hearing was held before Hearing Officer Robert F. Stange on November 14, 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, briefs were filed on behalf of the Employer and Carpenters. 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 case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Lilienthal Insulation Company is a sole proprietor- ship owned by Robert L. Lilienthal, engaged in the installation of various types of thermal insulation in buildings under construction in the Kalispell, Mon- tana, area. David Lindsey was the builder and Arthur Neufeld the general contractor of the Build- ers Discount Center job involved herein. Neufeld hired Lilienthal to install insulation on the project. The parties did not stipulate that the Employer met the Board's jurisdictional standards. We find that by combining the dollar volume of materials purchased by Lilienthal Insulation Company from outside the State of Montana, which was approximately $48,000 through October 1972, with that of Neufeld Builders, the general contractors on the job, which purchased approximately $20,000 worth of materials for the job, it is clear that these employers have been at all material times 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. Bartenders & Culinary Workers Union, Local 595, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO (Arne Falk, Inc.), 161 NLRB 1458. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Carpenters is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts At the time of the dispute the Employer was employing one man, Terry Hodges, as an insulation apprentice under an apprenticeship agreement with the State of Montana. About the first week in August 1972,1 Union Representative John Sudan saw Lilien- thal's truck parked at the construction site. Sudan went to Arthur Neufeld, the general contractor, and asked Neufeld if he knew he was employing someone who was not meeting union conditions. Neufeld said that the Employer was union and Sudan commented that that was true, but that he was employing Terry Hodges who was nonunion. Sudan then said that the Union might have to put up an informational picket on the job. Approximately August 11, Sudan returned to the construction site and told Neufeld that there was going to be a picket at the site, but that it would be strictly against the Employer and not against Neufeld Builders. At about the same time Sudan wrote letters to the various subcontractors on the job explaining the informational nature of the picket and that the picketing was only against Lilienthal and did not affect the other subcontractors. On Tuesday, August 15, Sudan came to the construction site and, after checking to see that Hodges was there, put the picket up. On seeing the 1 All dates referred to hereinafter are in 1972. 202 NLRB No. 29 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket, three of the carpenters employed by Neufeld left the job. A number of other employees who were not carpenters left at this time also. They went to Neufeld's house and explained that they were leaving because of the picket. Neufeld then went to the construction site to investigate the trouble. While there, he had a conversation with Sudan in which Sudan, in Neu- feld's words, "encourag[ed] me to use Carpenters." Neufeld said that the reason he let out the work to the Employer was in order to save a little money. Sudan stated that the insulation work was carpenters' work and should be given to them. David Lindsey, the builder, was also there at this time. At the time of the picketing, Lilienthal had completed work for Neufeld and was doing the same type of work for Lindsey. Sudan then talked to Lindsey and explained to him that the only way to get the picket off the job was to remove the Employer from the site. Sudan also said that he wanted a written statement that the Employer would not work any more on this job. At about this time, the Employer left the job. Lindsey and Sudan then agreed that if Lindsey would promise that Lilienthal would not be back, the picket would be removed. Lindsey promised this and the picket was removed. As they were leaving, Sudan commented that as long as Lilienthal was no longer working, he had carpenters who could do the job. After some discussion, Neufeld's carpenters agreed to finish the insulation installation on a cost-plus basis. B. The Work in Dispute This dispute concerns the assignment of the work of putting up both blanket and roll type insulation at the Builders Discount Center in Kalispell, Montana. C. Contentions of the Parties The Employer takes the position that it assigned the work to "Insulation Apprentices" under a valid agreement with the State of Montana. It maintains that it is not employing and has never employed carpenters to do the work. It contends that it can perform the work efficiently and in a workmanlike manner by assigning the work to insulation appren- tices. The Carpenters, on the other hand, contend that the dispute is not a jurisdictional dispute, but is an effort on the part of the Carpenters to maintain area standards. The Carpenters states that the real issue is that Lilienthal Insulation Company is paying less than standard area wages for work which carpenters perform. The Union maintains that the object of its picketing was to assure that the Employer paid wages which were equal to those paid to carpenters to do the same type of work. It maintains that although several people walked off the job, it did not intend this to happen and that the men who did walk off the job did so of their own accord and with no pressure from the Union. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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 the parties have not adjusted or agreed upon methods for the voluntary adjustment of the dispute. Contrary to the Union's contention that it was only engaged in area standards picketing, it is clear that its actions were inconsistent with such a contention. Thus, on August 15, the day of the picketing, Union Representative John Sudan told David Lindsey that the only way to get the picket off the job was to remove the Employer from the site and further said that when Lilienthal was no longer working on the job, there were carpenters who could do the job, and asked if they could have the work. Also, he stated to Neufeld that the work in dispute was carpenters' work and, in Neufeld's words, "encourag[ed] me to use Carpenters." Accordingly, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. We further find that the parties have not adjusted or agreed upon a method for the voluntary adjust- ment of the dispute. The Union contended that the Employer was bound by the terms of the contract between the Union and the Flathead Contractors Association Working Agreement for Building Con- struction, and that pursuant to that agreement the Employer' should have submitted the determination of this dispute to the Joint Board. We find, however, that the record does not show that the Employer is signatory to that contract or bound thereby to submit grievances to the National Joint Board. Accordingly, for the above reasons, we find the dispute is properly before the Board for determina- tion pursuant to Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors.2 The following factors are relevant in determining the dispute herein: 2 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402. CARPENTERS OF NORTHWESTERN MONTANA 241 1. Collective-bargaining agreement Although the Employer is a member of the Flathead Contractors Association, which has a contract with the Carpenters District Council of Northwestern Montana, the Employer did not sign the agreement. Lilienthal testified that the associa- tion consists of both union and nonunion members and the Employer contends that it is not bound by the contract. Thus, the factor of a collective-bargain- ing agreement is not helpful to our determination. 2. Custom and practice in the industry The Union testified that the work in dispute has been the work of carpenters since about 1946. The Carpenters have a classification for Insulation Apprentice in their apprenticeship program. The evidence shows that Robert Lilienthal, presi- dent of Lilienthal Insulation Company, had em- ployed Terry Hodges under a valid apprenticeship agreement with the State of Montana since August 1971. We find that while the evidence of area practice is inconclusive, the fact that there is a valid apprentice- ship agreement with the State of Montana favors the awarding of the work to the Employer's unrepresent- ed employees. 3. Relative skills, efficiency, and economy of operations Both the Employer and the Union have men who are capable of doing the job. The Employer contends that he can do the job more efficiently and at less cost with the employees whom he trains to install insulation under the State's apprenticeship program. This factor favors award of the work to the Employer's unrepresented employees. CONCLUSION Upon the entire record in this proceeding, after full consideration of the relevant factors, particularly the efficiency 'and economy of operations , and the Employer's apprenticeship agreement with the State of Montana, we conclude that the unrepresented employees employed by the Employer are entitled to the work in dispute . In making this determination, we award the work to the employees of the Employer who are being trained under the Insulation Installer Apprenticeship Agreement with the State of Montana. In making this determination we award this work to the employees trained by this Employer under the apprenticeship agreement and not solely to this single employee. Our 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. The unrepresented employees of Lilienthal Insulation Company, who are employed under the terms of its apprenticeship agreement with the State of Montana, are entitled to install insulation at the Builders Discount Center. 2. Carpenters District Council of Northwestern Montana, United Brotherhood of Carpenters 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 Lilienthal to assign the above- described work to employees who are represented by the Carpenters. 3. Within 10 days from the date of this Decision and Determination of Dispute, Carpenters District Council of Northwestern Montana, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing or requiring Lilienthal , by means proscribed by Section 8(bX4XD) of the Act, to assign the disputed work to employees it represents rather than to the unrepresented employees employed by Lilienthal under the apprenticeship agreement.