Carpenters District Council of Denver and Vicinity

CARPENTERS DISTRICT COUNCIL OF DENVER Carpenters District Council of Denver and Vicinity and Godwin Bevers Co., Inc. and Local Union No. 1 of the Bricklayers, Masons & Plasterers International Union of America, AFL-CIO. Case 27-CD-143 August 1, 1973 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed on July 3, 1973, by Godwin Bevers Co., Inc., herein called Godwin Bevers or the Employer, alleging that Carpenters District Council of Denver and Vicinity, herein called Carpenters, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing Godwin Bevers to assign certain work to employees repre- sented by Carpenters rather than to employees repre- sented by Local Union No. 1 of the Bricklayers, Masons & Plasterers International Union of America, AFL-CIO, herein called Bricklayers. Pursuant to notice, a hearing was held before Hear- ing Officer John F. Sayre on September 26, 1972, in Denver, Colorado. All parties appeared at the hear- ing' and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to ad- duce evidence bearing on the issues. Thereafter, the Employer, the Carpenters, and the Bricklayers filed briefs. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this case and hereby makes the following findings: I THE BUSINESS OF THE EMPLOYER Godwin Bevers is a Colorado corporation engaged in the commercial building construction industry. During the past 12-month representative period, God- win Bevers purchased directly from sources outside the State of Colorado, for delivery within the State of Colorado, goods valued in excess of $50,000. Accord- ingly we find, as the parties have stipulated, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. ' The Employer was not represented by counsel, but was represented by its president, B C Godwin II THE LABOR ORGANIZATIONS 155 The parties stipulated, and we find, that Carpenters and Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. The Work in Dispute The work in dispute consists of the setting, leveling, plumbing, aligning, welding, and patching of precast concrete exterior wall panels at the Employer's Day- ton Meadows construction site, located at 600 Dayton Street, Denver, Colorado. B. Background and Facts of the Dispute In the latter part of 1971, Godwin Bevers, as gener- al contractor commenced the construction of a com- plex of apartment buildings at 600 South Dayton Street, Denver, Colorado, known as the Dayton Meadows project. The project consists of the con- struction of 10 to 12 three-story apartment buildings. The exterior of the apartment buildings are construct- ed with the use of three-story high precast concrete "tilt-up" panels and boxes. Approximately 400 such precast panels are to be erected for completion of the project. The precast panels and boxes are both of woodgrain texture and smooth finish and are utilized both as decorative and structural members. The pan- els are cast by carpenter employees of Godwin Bevers at the jobsite. The carpenters build the wooden por- tion of the forms and strip the forms when the casting is complete. This phase of the work is not in dispute. After the panels are cured, they are lifted by crane close to the area of installation. At that time the dis- puted work of setting, leveling, plumbing, aligning, welding, and patching is performed. On December 30, 1971, the Employer assigned the disputed work to Carpenters. By letter dated Febru- ary 18, 1972,2 and received by the Employer on Feb- ruary 21, the National Joint Board for Settlement of Jurisdictional Disputes advised Godwin Bevers that a jurisdictional dispute existed between the Bricklayers and the Carpenters involving the setting of the exteri- or wall panels. The letter requested the Employer to provide certain information concerning the diputed work and advised that the Joint Board would consider the matter at a meeting on March 9. The Employer, by letter dated March 7, complied with the Joint Board's request for information. On March 13, the Employer received a letter from the Joint Board ad- vising that the Joint Board, at its meeting on March 2 Unless otherwise indicated all dates are in 1972 205 NLRB No. 22 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9, had awarded the disputed work to Bricklayers. After discussing the matter of the award with a representative of Bricklayers, the Employer, on March 21, notified the Joint Board and Bricklayers that it proposed to replace two carpenters on its instal- lation crew with two bricklayers upon attrition of the carpenters presently on the job. The Bricklayer's rep- resentative orally approved this compromise and, on or about April 14 or 15, when one carpenter left the job, the Employer replaced him with an apprentice bricklayer. The Carpenters business agent, Lamping, thereupon contacted the Employer and expressed sur- prise at the Employer's concession to the Bricklayers which resulted in a carpenter being replaced by a bricklayer. The Employer explained that it felt con- tractually bound, by its agreement with Bricklayers, to honor the Joint Board decision. Lamping adivsed the Employer that Carpenters does not recognize de- cisions of the National Joint Board and that Carpen- ters collective-bargaining agreement with the Employer does not provide for Joint Board resolution of disputes. Lamping also told the Employer, in effect, that the Carpenters would engage in a work stoppage in order to reobtain the full measure of the work assignment for its members. Subsequently, in further discussions with the Employer, Lamping reiterated the Carpenters threat of strike but a strike in fact never materialized. At all times material, the Employer had current collective-bargaining agreements with both contest- ing unions . Both contracts arguably cover the work in dispute. The Employer's contract with Bricklayers provides for the submission of all jurisdictional dis- putes to the National Joint Board and recognizes the decisions of the Joint Board as binding on the parties. The Carpenters, on the other hand, does not subscribe to any voluntary method for adjustment of jurisdic- tional disputes, does not recognize the National Joint Board, does not take part therein and has no represen- tation thereon, and, for this reason, does not recog- nize the jurisdiction of the National Joint Board or subscribe to its decisions. We take judicial notice of our findings in previous cases involving sister locals by the Carpenters that Carpenters parent organiza- tion has been in "non-compliance" status with the National Joint Board for several years.' In the absence of evidence to the contrary, we as- sume that it continued in that status at the time of the instant dispute. Our dissenting colleague, however, correctly notes that in a recent decision,4 in which he also dissented, 3 See, e g , Marble Masons, Terrazzo Workers and Tile Layers, etc (Winn- Senter Construction Company), 194 NLRB No 74, International Association of Bridge, Structural & Ornamental Iron Workers, Local 272 (P & G Erectors, Inc), 203 NLRB No 178 we said that: . . . where an "agreed-upon method" has been formally and deliberately created by the parties, stability in labor relations requires a deliberate and formal withdrawal from such procedures be- fore it will be considered no longer effective and binding. The record before us contains no evi- dence, apart from the noncompliance with the Joint Board's awards, indicating any such with- drawal from the previously agreed-upon method. Accordingly, we conclude that there remains in effect the previously established method, "agreed upon" within the meaning of Section 10(k) of the Act, for resolving this jurisdictional dispute. We adhere to this view and will consider evidence of a party's formal withdrawal or attempted withdrawal from the National Joint Board whenever such evi- dence is properly offered. Here, however, as in V & C, supra, which involved the Laborers union, no evi- dence of the Carpenters withdrawal, or attempted withdrawal, was offered. Indeed, none of the parties to this dispute even asserted that Carpenters had at any time withdrawn or tried to withdraw from the Joint Board. In these circumstances, we cannot find that Carpenters has withdrawn. Our colleague relies on language in Concrete Erec- tion I as evidence establishing that Carpenters has, in fact, withdrawn. In Concrete Erection our primary holding was that the employer was not contractually bound to Joint Board procedures and, therefore, our statement about Carpenters withdrawal was in the nature of dicta. Furthermore, a review of the record in that case shows that the dicta may have been both unfortunate and unnecessary, since, as here, the issue of withdrawal by the Carpenters from the Joint Board had not been litigated on the record. Rather, the evi- dence there, as here, showed only that the Carpenters was in noncompliance with Joint Board determina- tions and, for that reason, had decided to cease parti- cipating in Joint Board proceedings. We note in addition that the quoted language in Concrete Erection was based, not on the record there, but on our previous decision in Hoffman Construction Co.' where the Board found that neither the employer nor the Carpenters was bound by Joint Board deter- minations. But there the finding as to the Carpenters withdrawal was merely an adoption of a stipulation of counsel, and thus was not based on an analysis of record evidence. Under those circumstances, we do Local423, Laborers' International Union of North America, AFL-CIO (V & C Brickcleanmg Co), 203 NLRB No 176 5 Bricklayers & Stonemasons Union Local No 3 of Arizona (Concrete Erec- tion), 195 NLRB 232 6 Bricklayers, Stone Masons, Plasterers, Marble Masons, Tilelayers, Cement Masons, Mosaic and Terrazzo Workers Union No I of Oregon (Hoffman Construction Co), 193 NLRB 1095 CARPENTERS DISTRICT COUNCIL OF DENVER not believe it can be elevated to a finding of fact binding upon us in all future cases.' It is noteworthy that in the many jurisdictional dis- putes involving the Carpenters which have come be- fore this Board since the Hoffman decision,' Carpenters has not relied on the foregoing stipulation, entered into similar stipulations, or presented any do- cumentary evidence to establish its withdrawal or at- tempted withdrawal from the Joint Board. In all of those cases Carpenters has consistently contended only that it was placed in noncompliance status by the Joint Board on or about April 11, 1971, and for that reason has chosen not to participate since that time in Joint Board proceedings and therefore does not con- sider itself bound by its determinations. Thus we do not here, as our colleague seems to imply, depart from our statement in V & C, to the effect that we will consider the consequences of with- drawal if and when a case comes before us in which the record contains probative evidence that one of the unions in the jurisdictional dispute has formally with- drawn or attempted to withdraw from the National Joint Board. But we find no such record evidence- nor even such a contention-here. Accordingly, we are not persuaded by our colleague's dissenting views on this issue. C. Contentions of the Parties The Bricklayers contends that the complaint herein should be dismissed and the notice of hearing quashed on the grounds that (1) no reasonable cause exists to believe that Section 8(b)(4)(D) has been vio- lated, (2) the Employer is contractually bound to hon- or the decision of the National Joint Board awarding the work to Bricklayers, and (3) the dispute has, in fact, been resolved by the Employer's replacing of a carpenter with a bricklayer on the installation crew. Alternatively, the Bricklayers contends that the criter- ia normally considered by the Board in determining jurisdictional disputes under Section 10(k) of the Act favor awarding the work to employees represented by it. The Carpenters contends that it has not agreed to any voluntary method for adjustment of this dispute and that no such method exists which is binding on ' Furthermore, the primary issue in that case , as in Concrete Erection, was again whether the employer was bound to Joint Board proceedings 8 See, e g, Marble Masons, Terrazzo Workers and Tile Layers Subordinate Union No 3 of Kansas City, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO (Winn-Senter Construction Company), 194 NLRB 392, Bricklayers, Masons and Plasterers' International Union of Amen- ca, Local No 1, AFL-CIO (Lembke Construction Company of Colorado, Inc ), 194 NLRB 649, Concrete Erection, supra, International Association of Bridge, Structural & Ornamental Iron Workers, Local 272 (P & G Erectors, Inc), 203 NLRB No. 178 157 all necessary parties. Specifically, Carpenters con- tends that its agreement with the Employer contains neither a reference to the Joint Board nor to any other method of voluntary resolution of jurisdictional dis- putes. On the merits, Carpenters contends that all of the relevant factors support the Employer's original assignment of the work to employees represented by it. The Employer contends that, although it and the Bricklayers are contractually bound to honor the Joint Board's determination, the Carpenters is not similarly bound, and that the dispute must therefore be resolved by the Board. The Employer asserts that when the Joint Board awarded the disputed work to Bricklayers, contrary to its own prior assignment to Carpenters, it felt itself pressured by both unions; that it sought to resolve the conflict amicably between the unions; and that Carpenters was unwilling to agree to the Employer's proposed compromise solution and threatened to picket unless the Employer reassigned all of the work to carpenters .9 On the merits, the Em- ployer favors its original assignment to carpenters or, in the alternative, to a composite crew of carpenters and bricklayers. D. Applicability of the Statute Before the Board may proceed to the determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon methods for the voluntary adjustment of the dispute. As to (1), above, the record shows that, after the Joint Board issued its decision, the Employer modi- fied its original assignment of the work. The Employer's president, Godwin, testified that his deci- sion to replace a carpenter with a bricklayer on the installation crew was not entirely voluntary, but was in response to the pressure generated by the Joint Board's award. The record further shows that, follow- ing this reassignment, Carpenters threatened to picket the Employer unless all the work was reassigned to carpenters. The fact that the relationship between the Employer and the Carpenters remained amicable and that no strike actually occurred does not preclude a finding which we make, that the Employer considered itself threatened with serious economic harm by Car- penters unless it acquiesced in the Carpenters de- g The fact that the Employer and Carpenters agreed that the dispute could not reach the Board for determination absent a serious threat of work stop- page, which threat, Carpenters thereupon made, does not render such threat a sham as argued by Bricklayers Since Carpenters was unwilling to agree to the Employer's proposal to utilize a composite crew and insisted upon all of the work, the Employer had reason to believe that the threat would be earned out unless it acquiesced in the Carpenters demands 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mands. Accordingly, we find that reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. As to (2), above, we find, contrary to Carpenters contention, that all of the parties to this dispute are bound by the procedures and decisions of the Nation- al Joint Board. That entity was reestablished, follow- ing a brief hiatus, on April 3, 1970, by an agreement between the Building and Construction Trades De- partment, AFL-CIO, and certain "participating Con- tractors' Employers' Associations." 10 The Bricklayers and Carpenters International unions, as members of the Building and Construction Trades Department, AFL-CIO, are contractually required to honor its constitution. 11 which, in article X, Jurisdictional Dis- putes, provides: All jurisdictional disputes between or among af- filiated national and international unions and their affiliated local unions shall be settled and adjusted according to the present plan estab- lished by the building and construction trades department or any other plan or method of pro- cedure adopted in the future by the department for the settlement of jurisdictional disputes. Said present plan or any plan adopted in the future shall be recognized as final and binding upon the department and upon all affiliated national or international unions and their affiliated local unions. 12 In view of the foregoing, we find that both Carpen- ters and Bricklayers are bound to honor the jurisdic- tion and decisions of the National Joint Board. As previously stated, the Employer in its contract with Bricklayers has also agreed to submit jurisdictional disputes to, and to abide by the decisions of, the Joint Board. The fact that Carpenters currently may be in a position of "non-compliance" with past Joint Board determinations is immaterial for the purposes of this proceeding.13 Accordingly, we shall quash the notice of hearing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. "See, e g., Bricklayers, Masons and Plasterers ' International Union of America, Local No 1, AFL-CIO (Lemke Construction Company of Colorado, Inc 194 NLRB 649, Winn-Senter, supra Wood, Wire and Metal Lathers International Union , et al (Acoustical Contractors Association of Cleveland), 119 NLRB 1345, 1346, et seq 12 Constitution of the Building and Construction Trades Department, AFL-CIO, November 1971. 13 Local 423, Laborers' International Union of North America, AFL-CIO (V & C Brickcleaning Co), 203 NLRB No 176 MEMBER KENNEDY, dissenting: I would not quash the notice of hearing in this proceeding. As noted by the majority, the Carpenters have been in "noncompliance" status with the Na- tional Joint Board for several years. Under the rules and regulations of the Joint Board, so long as the Carpenters remain in noncompliance status "no deci- sion in any case decided in favor of the [Carpenters] shall be issued" and the Carpenters are not entitled to a representative on the Joint Board. Apparently, my colleagues are not offended by re- quiring a party to participate in a proceeding in which the cards are "stacked" in such a manner that he cannot possibly win. I am unwilling to require a party to utilize such a proceeding. The earlier Board cases holding that there is no agreed-upon method of settle- ment, within the meaning of 10(k) of the Act, where a union is in "noncompliance" status, are clearly cor- rect. See Lathers Local Union No. 62, Wood, Wire & Metal Lathers International Union, AFL-CIO (Belou & Co. Accoustics, Inc.), 150 NLRB 21, 25; Bricklayers & Stonemasons Union Local No. 3 of Arizona (Concrete Erection), 195 NLRB 232; Plumbers and Pipefitters Local No. 32 (Tacoma Chapter of the Associated Gener- al Contractors of America, Inc.), 191 NLRB 573. When the Board issued on May 31, 1973, its Sup- plemental Decision and Order Denying Motion for Reconsideration in Local 423, Laborers International Union of North America, AFL-CIO (V & C Brickclean- ing Co.), 203 NLRB No. 176, I understood that my four colleagues would honor a request to withdraw from the Joint Board. At least they stated: Rather, it appears that, where an "agreed- upon" method has been formally and deliber- ately created by the parties, stability in labor rela- tions requires a deliberate and formal withdrawal from such procedure before it will be considered no longer effective and binding. The record be- fore us contains no evidence, apart from the non- compliance with the Joint Board's awards, indicating any such withdrawal from the previ- ously agreed-upon method. Accordingly, we con- clude that there remains in effect the previously established method, "agreed upon" within the meaning of Section 10(k) of the Act, for resolving this jurisdictional dispute. [Emphasis supplied.] It now appears that this "withdrawal" language in that Supplemental Decision is meaningless for two members of the majority in the instant case who joined me in the decision in the Concrete Erection case, supra, in which we said: Moreover, the evidence establishes that Car- CARPENTERS DISTRICT COUNCIL OF DENVER penters has been in "non-compliance" with the National Joint Board since April 1, 1971, and since that time has withdrawn from and refused to participate in Joint Board proceedings. [Em- phasis supplied.] It seems to me that my colleagues ignore the require- ment of Section 10(k) of the Act that any agreed-upon method of adjustment must be voluntary. I suggest that in the area of jurisdictional disputes the Board majority has come dangerously close to the "compul- sory arbitration" which Member Fanning condemned in his dissent in Collyer Insulated Wire, 192 NLRB 837. The majority has found that the Carpenters Union (1) does not subscribe to any voluntary method for adjustment of jurisdictional disputes; (2) does not rec- ognize the National Joint Board; (3) does not take part in the National Joint Board; (4) has no represen- tation on the National Joint Board; (5) does not rec- ognize the jurisdiction of the National Joint Board; (6) does not subscribe to decisions of the National Joint Board, and (7) has been in "non-compliance" status with the National Joint Board for several years. It escapes me how the majority, in the face of all of the foregoing facts, can persist in a finding that the Carpenters Union has agreed to a method for the voluntary adjustment of this dispute. The majority states that "We take judicial notice of 159 our finding in previous cases involving sister locals by the Carpenters that Carpenters parent organization has been in `non-compliance' status with the National Joint Board for several years." I cannot understand why they are willing to take judicial notice of the earlier decisions finding the Carpenters in the status of "non-compliance" but are unwilling to take judicial notice of earlier decisions finding that the Carpenters had "withdrawn" from the National Joint Board. The majority labels as "dicta" 14 our earlier factual finding in the Concrete Erection case that the Carpenters Union has withdrawn from and refused to participate in the National Joint Board proceedings. In my view, the factual finding that the Carpenters had withdrawn in the Concrete Erection case was not dicta. Further- more, the factual finding was neither "unfortunate" nor "unnecessary" as now characterized by the major- ity. Moreover, in the recent oral argument in P & G Erectors, Inc., Case 12-CD-183, the representation of counsel for Broward County Carpenters District Council that the Carpenters had withdrawn from the Joint Board was not challenged even though counsel for the Joint Board appeared and argued in the case. For all of the foregoing reasons, the Board is obliged to hear and determine this dispute pursuant to the mandate of Section 10(k) of the Act. 14 I had always understood that "dicta" had reference to a statement of law or legal principle not necessary for a decision in the case I have not under- stood "dicta" to have reference to factual findings