Carpenters, Local 112

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters & Joiners of America, Local 112, AFL-CIO and Summit Valley Industries, Inc. and Butte Teamsters Union, Local No. 2, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Ind. Case 19-CD-212 April 6, 1973 DECISION AND DETERMINATION OF DISPUTE outside the State of Montana valued in excess of $50,000.2 Accordingly, we find 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 The parties stipulated,_and we find, that Carpenters and Teamsters are labor organizations within the meaning of Section 2(5) of the Act. BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Summit Valley Industries, Inc., herein called the Employer , alleging that United Brotherhood of Carpenters & Joiners of America, Local 112, AFL-CIO, herein called Carpenters, has violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing the Employer to assign certain work to employees represented by Carpenters rather than to employees represented by Butte Teamsters Union, Local No. 2, affiliated with International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind., herein called Teamsters. A hearing was held before Hearing Officer Robert J. Janowitz, on November 28 and 29, . 1972, in Butte, Montana. The Employer, Carpenters, and Teamsters 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 posthearing briefs. 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 Employer, a Montana corporation whose principal office is in Butte, Montana, is a manufac- turer of prefabricated or modular homes. In the course and conduct of its business in its first year of operations,' the Employer will'have purchased goods and materials directly or indirectly from firms I The Employer commenced operations on June 12, 1972. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of the manufacture or building of . prebuilt or modular homes and other structures, including work at the intended sites of said structures necessary to make the structures habitable , to the extent all such work is. claimed by Carpenters pursuant to its collective -bargaining agreement with the Silver Bow Employers' Associa- tion and Butte Contractors' Association , herein called Silver Bow and BCA , respectively. B. The Background and Facts of the. Dispute The Employer manufactures modular homes at its plant and sells the finished product to realtors or ultimate users who in turn contract independently with other firms for. the laying of the foundations on which the modular homes will be installed at the jobsite. The user can also arrange to have a garage built and attached to his house . One of the firms that specialize in foundation laying and garage building is Jovick Construction, Inc., herein called Jovick. Jovick has been so utilized by some of the Employ- er's customers. Jovick is affiliated with BCA which in turn has entered into a collective-bargaining agree- ment with Carpenters , article XXII of which pro- vides inter alia that , for any given work project, a certain designated minimum amount of work' has to be done at the jobsite by workmen represented by Carpenters if not done at the company -signatory's shop. At the time of the hearing the Employer's complement of employees was approximately 4, although the number has been as high as 20. In mid-September 1972, the Employer and -Team- sters entered into a collective -bargaining agreement, effective June 12, 1972, which provided that employ- ees represented by Teamsters would perform all in- plant manufacture and assembly work and all related on-site preparation. On or about October 3, 1972, Leo Calcaterra, an each of seven houses already built and would also go into each of seven 2 This figure is based on calculations made by the Employer that more houses ordered and slated for completion by May 1, 1973. $5,801.75 worth of such goods and materials had gone into the building of 202 NLRB No. 153 CARPENTERS, 'LOCAL 112 975 employee of Jovick and a member of Carpenters, was putting the shingles on the roof of a garage attached to a modular home built by the Employer and already delivered on site. Upon hearing of this, James Cadigan, business representative of Carpen- ters, came on the scene and ordered Calcaterra off the job, advising him that the house he was working on was "unfair. Calcaterra complied with the request and notified Frank Jovick, coowner of Jovick Construction, Inc.,3 as to what happened. The next day, Jovick met Cadigan and asked why his man was pulled off the job. Cadigan told him that his work of putting the garage on the Employer's prefabricated modular home violated the BCA-Carpenters con- tract. Pursuant to advice from his -attorney, Frank Jovick completed work on the garage himself, all of Jovick's employees having abided by Cadigan's order to refuse to work on modular homes. Faced with an inability of Jovick to complete his on-site work, the Employer's customers, on two occasions, requested that the Employer complete the work itself, which it did. After the Employer started assigning its own men, represented by Teamsters, to finish the necessary on-site work, Carpenters began picketing the, Employer's plant. On October 11, the picketing began, manifested by the carrying of a picket sign by one person, the fastening of the picket. sign to the fender of a car parked near the entrance to the Employer's plant, or the leaning of the sign against a nearby telephone pole. The picket sign read "NOTICE TO PUBLIC, This Employer did not employ members of Carpenter's Union in the work to be performed., on this building-Local 112, Carpenters Union AFL-CIO," "this building" refer- ring to a model prefabricated home situated on the premises near the sign. The picketing continued on October 12, 13,.18, 19, and 24 and November 7, 1972. The Employer sought, and on November 8 obtained, a temporary restraining order pursuant to Section 10(1) of the Act from the United States District Court for the District of Montana. Since that time, Jovick's employees have returned to work preparing the homesites for the Employer's houses; and picketing has ceased. C. Contentions of the Parties The Employer and Teamsters defend the present assignment of the work in dispute .to the Teamsters, citing their collective -bargaining agreement which clearly provides for such assignment .4 Teamsters is -willing to relinquish its claim to all the necessary on- site preparation and installation-work to Carpenters or any other craft union willing to do such work. Only if such union is unwilling or unable to do the on-site work will Teamsters, assert its jurisdiction and go onto the site and complete the'work. The Employer further argues that Carpenters unlawfully pressured it to assign the disputed work to Carpenters rather than to Teamsters, thus violating Section 8(b)(4)(D) of the Act. This pressure was manifested in two- ways. By ordering Jovick's employees to- refrain from building foundations or attaching garages at the site of installation, Carpen- ters was indirectly trying to force the Employer to transfer a great deal of its in-plant fabrication work, done by Teamsters, to Carpenters, who would then do such work at the site. The Employer cites the testimony of Frank Jovick that Cadigan told him that many modular home factories had "gone broke" and -Vowed that they (Carpenters) would "break them," "them" presumably referring to plants such as the Employer's, unless men represented by Carpenters did the disputed work. Jovick also testified that Cadigan told him ' that the breach of article XXII of their collective-bargaining agreement would be cured, and Jovick's employees permitted to return to work, if the Employer signed article XXII himself. Finally, the Employer cites a statement. by Cadigan, attributed to him by Jovick, that his men would go back to work if the owner of the modular home signed article XXII. The Employer also argues that direct pressure was placed on it to reassign the" disputed work to Carpenters. Such pressure took the form of the picketing of its plant during late October and early November 1972, after the Employer had directed its own employees to complete the on-site preparation work Jovick was precluded from doing. The Employ- er also cites Cadigan's testimony to the effect that, if the Employer persisted in having its own employees do the on-site work in place of Jovick, Carpenters would notify the public through picketing or hand- billing that the work was not being performed by Carpenters. Carpenters contends that there is no reasonable cause to believe that Section 8(b)(4)(D) -has been violated. It does not claim the in-plant work performed by the Employer's employees. The only dispute Carpenters has is with Jovick, which, as an affiliate of BCA, was bound by article XXII of the Carpenters-BCA agreement guaranteeing employees 3 The corporation is owned and operated by Frank Jovick and his wife. the final destination and preparation of the site, so as to preserve and q Art. 1(B) of the agreement provides that: protect the integrity of the products manufactured by the bargaining The Employer recognizes the jurisdiction of the Union over all unit. manufacture and assembly work, including following the product to 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Jovick a certain minimum amount of work at each construction site.5 The validity of this article has been upheld by the Board.6 By merely digging the foundation for, and/or attaching garages to, the Employer's prefabricated houses, Jovick was per- forming less than minimum work article XXII, section 3A, called for and hence was in violation of its contract with Carpenters. Any pressure exerted against Jovick, regardless of its incidental impact on the Employer, was for the sole purpose of urging Jovick to comply with the terms of that agreement, i.e., assign Carpenters the work set forth in article XXII, section 3A, even if it meant tearing down some of the prefabricated work and doing it again. No pressure was purposely directed at the Employer to change his work assignment.? As for the picketing of the Employer, Carpenters contends it was of a purely informational nature, without any indication of threats, coercion, or interference., It took place on seemingly public land and the picket signs were truthful. Thus, such informational picketing, argues Carpenters, protected activity. was 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. Viewing the total circumstances of this case, we find that Carpenters conduct went beyond merely at- tempting to enforce article XXII, section 3A, against Jovick. By pulling Jovick's employees off the jobsite and threatening to picket the Employer's workmen if they followed their work to the jobsite and completed the work thereon, Carpenters for all intents and purposes was preventing the Employer from deliver- ing its product to its customers in salable condition. Only if the. Employer drastically curtailed its in-plant operations and delivered the components of each modular house to the jobsite so that Carpenters would then do the work guaranteed by article XXII, section 3A, in other words reassign its plant work s Sec. 3A of art. XXII reads in relevant part as follows: All of the following work shall be performed at the site of construction, alteration, or repairing of the building structure or other work and shall not be subcontracted off thejob site, unless said work is done at the Employer's shop. (I) All the erection of the forms for basements and/or footings for the structures. Nothing herein shall be construed to apply to prebuilt forms which have, through past practice, been utilized by the Employers. (2) The installation of all exterior siding or finishing, or, in the alternative, all wallboards and/or paneling. (3) The installation of exterior trim on the structure, or, in the alternative , all interior trim on the structure. (4) The installation of all interior doors on the structure. (5) The shingling of all roofs, whether wood, metal or composition material. (6) Installation of all cabinets and shelving. from Teamsters to Carpenters, would the Carpenters remove pressure from the Employer and its subcon- tractor Jovick. Corroborative of Carpenters unlawful objective is the evidence of a more direct pressure placed on the Employer by Carpenters. The record clearly shows that Carpenters picketed the Employer's plant for the express purpose of effecting a reassignment of the prefabrication of the modular houses from workmen represented by Teamsters to workmen represented by Carpenters, either on the jobsite or in the plant. Cadigan in fact admitted that the picketing would have ceased had the in-plant work been given to members of Carpenters. Furthermore, Cadigan testified that additional picketing and handbilling would take place if Teamsters insisted on following the work to the jobsite. From these circumstances, we find 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 determi- nation. 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 The collective-bargaining agreement in effect between the Employer and Teamsters clearly pro- vides for an assignment of the work in question to employees represented by Teamsters. There is no collective-bargaining agreement in effect between the Employer and Carpenters. We thus concluded that. the Employer's contract clearly favors assignment of the work in dispute to employees represented by Teamsters. 2. Employer and area practice The ' Employer has not been in business long (7) The cutting and installation of all wooden stairs and /or bannisters. (8) The installation of all form work for steps and /or stoops... . (9) The placing and fastening of all components of the structure upon the foundation. 6 United Brotherhood of Carpenters and Joiners of America, Local 112, AFL-C/O and Silver Bow Employers' Association and Butte Contractors' Association, 200 NLRB No. 42. In this' case, it was alleged that art. XXII amounted to a "hot cargo" clause violative of Sec. 8(e) of the Act , and that the striking and other coercive activities , engaged in by Carpenters to secure such a clause in its contract with the two Contractor Associations , violated Sec. 8(b)(4)(A). The Board however found such activity to be of a lawful primary nature , and art. XXII to be a lawful work preservation provision. I Cadigan specifically denied vowing to "break" the Employer or manufacturers like the Employer . Cadigan also denied telling Jovick that his employees would return to work if Employer signed art. XXII. CARPENTERS, LOCAL 112 977 enough to establish an "Employer practice." The record reveals, however, that employees represented by other Teamsters locals have performed prefabri- cation work at five or six modular home manufactur- ing plants throughout the country. There is one other modular builder in Montana, which has a contract with another Teamsters local. There is also evidence that two modular home builders, both outside Montana, have collective-bargaining agreements with the International Brotherhood of Carpenters. The weight of.evidence as to area practice favors the Employer's present assignment. 3. Skills, efficiency, and economy of operation Neither union makes the claim that its members possess superior skills to perform the disputed work. In fact, as the bulk of the workers newly hired by Employer were inexperienced in modular home fabrication, and as only 1 to 3 weeks on-the-job training is deemed necessary by the Employer, it appears that the work in dispute does not call for any skills peculiar to either Carpenters or Teamsters. With respect to efficiency and economy of opera- tions, neither union has introduced evidence tending to favor an assignment to its respective members. In view of the foregoing, we find that the factors of skill, efficiency, and economy of operation favor neither the Employer's assignment nor an assignment of the disputed work to workmen represented by Carpenters. 4. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by Teamsters are entitled to perform the work in dispute. This assignment is consistent with collective-bargaining agreements and area practice. In making this determination, we are awarding the work in question to employees represented by Teamsters, 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 the Employer who are currently represented by the Butte Teamsters Union, Local No.,-2, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., are entitled to the work of manufacturing or building of prebuilt or modular homes and other structures, including work necessary to make' the structures habitable, to the extent all such work is claimed by United Brotherhood of Carpenters and Joiners of America, Local 112, AFL-CIO, pursuant to its collective-bargaining agreement with the Silver Bow Employers' Associa- tion and Butte Contractors' Association. .2. United Brotherhood of Carpenters and Joiners of America, Local 112, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the above work to its members or employees whom. it repre- sents. 3. Within 10 days from the date of the Decision and Determination of Dispute, the labor organiza- tion listed in the preceding paragraph shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing or requiring Summit Valley Industries, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work awarded above in a manner inconsistent with the above determination.