Carpenters, Local Union 213

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Local Union No. 213 and Carpenters District Council of Houston and Vicinity and Brede, Inc. of Houston and Sign & Pictorial Painters Local Union No. 550. Case 23-CD-281 March 29, 1973 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Brede, Inc. of Houston, hereinafter called the Employer, alleging that Car- penters Local Union No. 213 and Carpenters District Council of Houston and Vicinity, hereinafter called the Carpenters, 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 certain work to employees represented by the Carpenters rather than to employees represented by Sign & Pictorial Painters Local Union No. 550, hereinafter called the Painters. A hearing was held before Hearing Officer Michael Dunn on February 23, March 13, 14, and 15, 1972. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing upon the issues. The Carpenters and the Painters filed briefs. The Board has reviewed the Hearing Officer's rulings 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: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and the record shows, that the Employer is a Texas corporation engaged as a contractor in the design, construction, installation, and dismantling of prefabricated displays and exhibit booths in convention and exhibit halls in Houston, Texas, and vicinity, and that during the past 12 months, a representative period, the Employ- er purchased goods and materials from points outside the State of Texas valued in excess of $50,000 and transported them directly into that State. We find, therefore, that the Employer 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 INVOLVED The parties stipulated, and we find, that the Carpenters and the Laborers are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background At issue is the question whether convention display booth erection and dismantling work in Houston, Texas, should be awarded to employees represented by the Painters or to carpenters represented by the Carpenters. The Employer is a display company operating under contract to various decorating companies for the design, fabrication, storing, erecting, and disman- tling of display exhibits for conventions. On Novem- ber 5, 1971, the Employer was scheduled to erect two exhibits for GRX Incorporated, a decorating compa- ny, at the Albert Thomas Convention Hall in Houston. The Employer assigned three of its display- shop employees to perform the work. The display- shop employees were all represented by the Painters and the Employer had no employees represented by the Carpenters in its employ. The three display-shop employees arrived at the jobsite at 10 a.m. At approximately 1 p.m., John Stewart, a Carpenters steward, approached the employees and stated that they were not supposed to be doing that work without having some carpenters with them and were taking work away from the Carpenters. The carpen- ter steward blew the whistle, and the carpenters who were working elsewhere in the hall ceased working. Jack Fountain, the executive secretary of the Carpen- ters District Council, arrived on the scene and stated to the carpenters in the presence of the Employer's employees: "If you guys are going to let them take the work away from you, you all just go ahead and do what you want, push over crates on them or push over exhibits." Thereupon, several carpenters sat on the work to be performed by the Employer's employees. When Joe Ford, the Employer's general manager, arrived at the scene, he discussed the dispute with Fountain, who permitted the work to proceed only with a composite crew to be comprised of carpenters and the display-shop employees origi- nally assigned by the Employer. B. Contentions of the Parties The Carpenters contends that there is insufficient evidence to show any violation of Section 8(b)(4)(D) and that the record presents only a "vague shadow" of a possible misunderstanding about the assignment of work on the job on that day. In this regard, the Carpenters further argues that the actions taken in furtherance of the work demand were discussed only among the carpenters and were not directed to the Employer's employees. The Carpenters also moves to dismiss the Notice of Hearing, pursuant to the provisions of Section 102.93, on the ground that a 202 NLRB No. 96 CARPENTERS , LOCAL UNION 213 tripartite agreement, considered below, executed by the Employer, the Carpenters, and the Painters and in existence at the time of the work stoppage, provided an agreed-upon method of adjusting the dispute, within the meaning of that section. The Carpenters further contends that its current contract with the Employer, which accords display-booth erection and dismantling work to carpenters, thereby justified an award of the work in dispute to the members of the Carpenters. The Painters denies all of these contentions and contends, to the contrary, that the work in dispute should be awarded to the Employer's display-shop employees, represented by the Painters in accord with the Painters current contract with the Employer, which antedates the Carpenters contract. The Employer takes no position as to the merits of the award. C. Applicability of the Statute The charge alleges violations of Section 8(b)(4)(D) of the Act, and, contrary to the contentions of the Carpenters, the record in our view furnishes reasona- ble cause to believe that the Carpenters has re- strained and coerced the Employer for the purpose of forcing the assignment of the disputed work to its members. We shall turn now to the Carpenters contention that the Notice of Hearing should be quashed. Section 102.93 provides as follows: If, either before or after service of the notice of hearing, the parties submit to the regional director satisfactory evidence that they have adjusted the dispute, the regional director shall dismiss the charge and shall withdraw the notice of hearing if notice had issued. If, either before or after issuance of notice of hearing the parties submit to the regional director satisfactory evidence that they have agreed upon methods for the voluntary adjustment of the dispute, the regional director shall defer action upon the charge and shall withdraw the notice of hearing if notice has issued. If it appears to the regional director that the dispute has not been adjusted in accordance with such agreed-upon methods and that an unfair labor practice within the meaning of Section 8(b)(4)(D) of the act is occurring or has occurred, he may issue a complaint under Section 102.15, and the proce- dure prescribed in Sections 102.9 to 102.51, inclusive, shall, insofar as applicable, govern; and Section 102.90 to 102.92, inclusive, are inapplica- ble. [Emphasis supplied.] ' N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U S 573 777 Article IV, sections A and B of the tripartite agreement, entitled "Grievance Procedure and Arbi- tration," read as follows: All disputes that may arise on any convention job site covered by this Agreement, shall be handled in the following manner without permit- ting the grievance to interfere in any way with the progress and prosecution of the work. The Employer and the Union will meet, if necessary, at reasonable times for the purposes of handling grievances of the Employees covered by this Agreement. Only controversies between an employee or employees covered by this Agreement and the Employer involving interpretation or viola- tion of any section of this Agreement shall be considered a grievance subject to arbitration. Such arbitral matters shall be processed through the grievance procedure to arbitration without resort to a strike or a walk out. [Emphasis supplied.] Article IV, section B, specifically applies only to disputes between the Employer and employees covered by the agreement, and by the same token excludes, as employees not covered by the agreement, the workers represented by the Car- penters who barred the employees of the Employ- er from performing the work to which they were assigned. It is clear from the foregoing and the entire record evidence, and we find, that at all times material herein there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. Clearly, by its own terms, the tripartite agreement cannot serve as an agreed-upon method for the voluntary adjustment of the instant dispute. Accordingly, we find that the matter is properly before the Board for determination. D. 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.' 1. Company practice Since its certification by the Board in 1956, the Painters has continuously represented the Employ- er's shop decorating employees. The current contract between the Painters and the Employer covers the work here in dispute. Prior to 1969, the convention industry in Houston was relatively small, and as a result, a significant portion, if not all of the exhibit erection and dismantling work was performed by the relatively small complements of employees of the 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several display companies in Houston, including the Employer, whose shop complement has numbered in the neighborhood of six to eight employees. Since 1969, the Convention Center in Houston has grown to at least 10 times its original size, with the result that, with the Home Show in 1969, employees represented by the Carpenters were used for the first time by display companies in setting up and dismantling exhibits. The Employer's consistent practice in coping with the increased workload occasioned by this expansion has been initially to assign all of its own shop employees, hitherto and currently represented by the Painters, for the erection and dismantling work, and to hire employees represented by the Carpenters only when additional personnel is needed. There is no evidence that the Employer contemplated hiring such additional per- sonnel on thejob herein involved. 2. Certifications and collective-bargaining ,agreements In 1956 the Board certified the Painters in a collective-bargaining unit of the Employer's employ- ees which included display-booth erectors. On April 30, 1970, the Employer and the Painters executed the current collective-bargaining contract effective to March 7, 1973, covering display-booth erection work, inter alia. In December 1970 or January 1971, the Employer, the Carpenters, and the Painters executed the aforementioned tripartite agreement, effective to January 1, 1972. On December 10, 1971, more than a month after the instant work stoppage, the Employer and the Carpenters executed a contract effective to June 28, 1974, covering, inter aka, the erection of display booths. We attach no importance to this latter Carpenters contract in making our award herein, inasmuch as the contract was not in existence at the time of the work stoppage and is also in direct conflict with the Painters preexisting and still current contract covering the disputed work. In our view, the aforementioned tripartite agree- ment, which was operative during both the term of the Painters contract and the period of the instant work dispute, clearly expressed the acquiescence of all of the parties to this proceeding in the Employer's work practices as they existed at the time of the work 2 We disagree with our colleagues' view that the tripartite agreement clearly and unambiguously specifies precisely what work was required to be assigned to the craftsmen represented by each of the two unions and that therefore this agreement constituted an agreed -upon method for the voluntary adjustment of the dispute within the meaning of Sec 10(k) It is true that this agreement indicates certain specific types of work which "will be performed" by carpenters and other types of work that "will be recognized as Painters work " Taken at face value and without consideration of other contract provisions of the tripartite agreement, past stoppage. Thus, article II, section A of the tripartite agreement provided, in substance, that "without waiving past jurisdictional histories and for the sole purpose of and limited to this Agreement," certain listed work was to be performed by carpenters. Thereafter, article II, section C provides in part as follows: The parties agree that the Employer may employ regular exhibit employees on the work set out in Section A or Section D if the regular exhibit employees are recognized journeymen-exhibitors or journeymen-decorators and said Employees are represented by Local 550, but it is expressly understood membership in Local 550 is not a condition of employment with employer ... . Article II, section D, provides, in part, as follows: The Employer and the Unions agree, without waiving Sign and Pictorial Painter Local Union 550's past jurisdictional history and solely for the limited purpose of this Special Agreement that the following work will be recognized as Sign and Pictorial Painters work and Employer further agrees to contract the Sign and Pictorial Painters Local Union 550 in obtaining qualified employ- ees. If the Sign and Pictorial Painters Local Union 550 is unable to supply the number of individuals requested by employer within a reasonable time, the employer and/or Union shall exert every effort to obtain the necessary man- power as quickly as possible. By the express provisions of these sections, the parties thus clearly agree that they will not waive past jurisdictional history, that the Employer may employ its regular employees, herein represented by the painters, to perform display-booth erection and dismantling work, and that the Employer and the Painters shall use their best efforts to obtain additional manpower, should the Painters be unable to supply sufficient help. This is precisely in accord with the Employer's work practices which it claimed were operative at the time of the dispute-namely, to assign its employees exclusively for booth-erection work where they were numerically capable of performing the work, and to hire carpenters only when the job demanded more help. For the above reasons, we find without merit the Carpenters work claim based on its current contract.2 practice, and the Painters separate contract with Brede , perhaps there would be some merit in our dissenting colleagues ' position However, as noted above, after considering these additional matters, we cannot perceive the clarity in the tripartite agreement to which our colleagues allude indeed, it is those rival claims raised because of the Painters agreement. the past practice of the parties, and by the several provisions of the tripartite agreement itself which require the resolution of this dispute through our usual I0(k) procedures Thus, as the Supreme Court observed in N L R B v Radio and Television Broadcast Engineers Union , Local 1212, International CARPENTERS, LOCAL UNION 213 779 3. Efficiency and economy of operations It appears that the employees of the Employer normally construct and build the displays in the Employer's shop prior to erection at the exhibit site. Thereafter, these same employees dismantle and pack the displays for shipment to the exhibit site. Clearly, the employees of the Employer are totally familiar with the design and construction of the display and are more familiar with its erection and dismantling than would be carpenters employed at the exhibit site. Although it appears that carpenters are capable of performing the work in dispute, because of their complete familiarity with the display, the employees of the Employer are more efficient in unpacking, erecting, and thereafter again dismantling the Employer's displays. Testimony in the record also reveals that the employees to whom the Employer assigned the work in dispute are permanently employed by him, are skilled in all phases of the Employer's work, and may be expediently shifted from job to job with no waste of time or money. Thus being able to assign the work in dispute to his own employees, the Employer is in a better position to utilize his employees' full range of skills, resulting in savings of time and money, along with increased efficiency. Conclusions Upon consideration of all pertinent factors in the entire record, we conclude that the Employer's employees are entitled to perform the disputed work. The award of the work to its employees is consistent with the Employer's contract with the Painters, and with area practice and will result in more efficient and economical operations. We shall, therefore, determine the existing jurisdictional dispute by awarding the erection of convention exhibit booths to the employees employed by the Employer and represented by the Painters.3 In making this determi- nation the Board is awarding the disputed work to employees represented by Local 550 but not to that Union or its members. 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 Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), supra, 576-577 when Congress created this new type of unfair labor practice by enacting § 8(b)(4)(D) as part of the Taft- Hartly Act in 1947, it also added § 10(k) of the Act Section 10(k) quite plainly emphasizes the belief of Congress that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon proceeding, the National Labor Relations Board hereby makes the following determination of dispute. 1. Employees employed by Brede, Inc. of Hous- ton, who are currently represented by Sign and Pictorial Painters Local Union No. 550, are entitled to the erection and dismantling of convention exhibit booths in Houston, Texas, and vicinity. 2. Carpenters Local Union No. 213 and Carpen- ters District Council of Houston and Vicinity are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to award the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Carpenters Local Union No. 213 and Carpenters District Council of Houston and Vicinity shall notify the Regional Director for Region 23, in writing, whether they will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than to employees represented by the Painters. CHAIRMAN MILLER AND MEMBER PENELLO , dissent- ing: Under the facts of this case, unlike our colleagues, we would have granted the motion to quash the notice of hearing. The special facts which lead us to this conclusion, include principally the existence of a tripartite agreement executed by the Employer and the two unions here involved, which clearly and unambigu- ously specified precisely what work was required to be assigned to the craftsmen represented by each of the two unions. It thus seems to us that the parties' agreement precluded any necessity for our having engaged in the necessarily rather lengthy process of holding a 10(k) hearing. Rather, we would hold that the notice of hearing should have been quashed, since we would accord to the agreement of the parties the same weight as the Board has always accorded to a determination of work assignment made by a tribunal selected by the parties. Thus if, as here, one of the Unions picketed in disregard of its agreement, we would be of the view that the General Counsel could proceed directly to an invocation of Section 8(b)(4)(D) in order to restrain the illegal jurisdiction- al picketing, just as he does, for example, in the case Unions [Footnotes omitted ] Our colleagues contend that an award to the Painters may well operate in contravention of the tripartite agreement to which all the parties were bound Clearly, as noted elsewhere herein , we cannot attribute to the tripartite agreement that preciseness as to work jurisdiction which our colleagues accord it But, in any event, the tripartite agreement expired shortly after the events involved in the instant dispute and we cannot speculate as to events which may or may not occur in the future 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of picketing which violates the terms of a Joint Board award where all parties have previously bound themselves to the Joint Board's procedures. In our view, the parties' agreement here should properly be construed as an agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k). While that statutory terminology most commonly refers to a procedural route which the parties have agreed should be followed in order to arrive at a work assignment which must then be accepted by all parties, we see no reason why it should not also encompass an advance agreement among all parties as to the specifics of the work assignment. Were the agreement open to interpretative prob- lems so that each craft had a colorable claim under it, then there might well be reason for us to resolve the dispute through our usual 10(k) procedures. But such is not the case here. The procedure approved by our colleagues not only sanctions a lengthy hearing process which seems to have been wholly superfluous and unnecessary on the facts here, but their decision has also resulted in the anomaly of an award which may well operate in contravention of an agreement to which all the parties were bound. For our colleagues have awarded all of the booth erection work to employees repre- sented by Local No. 550 of the Painters, whereas the agreement among the parties specifies that such work shall be assigned to employees represented by the Carpenters Union in the event that sufficient painters are not available. Thus, should there be insufficient painters available, adherence to the contract would apparently violate the award made by a majority of this Board. Such are the perils of this unnecessary and undesirable interjection of this Board's judgment into a situation which ought to be governed by the agreement to which the parties had all voluntarily agreed.