Local 193, Carpenters

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 193, United Brotherhood of Carpenters and Joiners of America, AFL-CIO' and Associated of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. General Contractors of Massachusetts, Inc.2 and George E. Emerson, Inc .3 and Local 473, Laborers II THE LABOR ORGANIZATIONS INVOLVED International Union of North America , AFL-CIO.° Cases 1-CD-305 and 1-CD-326 There is no issue as to the status of the Laborers and the Carpenters, which we find to be labor organiza- August 17, 1973 tions within the meaning of Section 2(5) of the Act. DECISION AND DETERMINATION OF DISPUTE III THE DISPUTE BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following charges filed by AGC of Massachusetts alleging that the Carpenters violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed conduct with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by the Laborers. A hearing was held before Hearing Officer Francis X. McDonough on July 27 and October 13, 1972, and on April 6, 1973.5 The 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 , the Car- Penters and the Laborers filed briefs. Puruant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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: I THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a corporation located in Pittsfield, Massachu- setts, is a general contractor in the construction business and that the Employer annually receives from outside the State of Massachusetts goods and materials valued in excess of $50,000. The parties stip- ulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) 1 Herein called the Carpenters 2 Herein called AGC of Massachusetts 3 Herein called the Employer ° Herein called the Laborers 5 Pursuant to a Board Order , dated February 26, 1973, the hearing was reopened for the purpose of adducing evidence with respect to the 8 (b)(4)(D) charge A. Background and Facts The Employer is the general contractor for the con- struction of a new building at North Adams State Teachers College, North Adams, Massachusetts. The Employer also acts as the subcontractor for all the masonry work on this project. Pursuant to its contract with the Laborers 6 and in accord with its own and area practice among maso- nary contractors, the Employer in April 1972' as- signed to employees represented by the Laborers the work of erecting all scaffolding which was to be used primarily by masons. On June 7, 1972, Marvin Simon, business agent of the Carpenters, whose members had other duties on the project, informed both the Employer's superinten- dent on the North Adams job and Ralph Emerson, president of the Employer, that its members would not work on any scaffolding built by laborers. Be- tween that date and early August 1972, the carpenters refused to do any work which involved masonry scaf- folding. Thereafter, the Employer, a member of AGC of Massachusetts, received from the latter a document entitled "Recommended Labor Policy," which sug- gested, inter alga, that "scaffolding more than 14 feet in height shall be erected and dismantled by carpen- ters with laborers tending the carpenters." Upon in- corporation of this suggestion in a new contract negotiated by the Laborers and the General Contrac- tors Association of Pittsfield, Massachusetts,' the Em- ployer on August 3 assigned all masonry scaffolding over 14 feet in height to employees represented by the Carpenters. However, when the Laborers requested advice thereon from the National Joint Board for Set- tlement of Jurisdictional Disputes in the Building and Construction Industry, the latter on August 10 wrote the Employer that "it is a violation of the Procedural Rules [of the Joint Board] for a contractor . . . to 6 This contract extended from May 19, 1969, to May 31, 1972 ' Unless otherwise specified, all dates below refer to 1972 8 James V Merlom, president of the Massachusetts Laborers District Council, testified that as of the hearing date, April 6, 1973, the contract was not yet in effect because it had not been approved by the Construction Industry Stabilization Committee 205 NLRB No. 96 LOCAL 193, CARPENTERS 605 change [an] assignment unless there is agreement be- tween the trades or a directive from the Joint Board." On August 14, the Employer received a call from AGC stating That the Employer must reassign the disputed work to the laborers in accordance with the determination of the Joint Board. Thereafter, Emerson telephoned Simon to inform him that he was turning the assignment back to the laborers because of the AGC directive. Simon replied that he would have to check with the International representative of the Carpenters. On September 7, the carpenters worked 3-1/2 hours and walked off thejob after Simon had a conversation with the steward. Al- though the carpenters returned to work on September 12, Simon, on September 19, told Emerson that they would not work on any scaffolding erected by the laborers. The carpenters continued to perform certain duties at the jobsite until September 26, but per- formed no work relating to the masonry scaffolding. On the latter date, the carpenters walked off the job because the laborers continued to build the scaffold- ing. They returned to work on October 3 after com- mencement of an injunction proceeding in the United States District Court for the District of Massachu- setts," and pursuant to a Stipulation of the Parties affirmed by the court. B. The Work in Dispute The work in dispute is the erection of masonry scaffolding at the North Adams State Teachers Col- lege project in North Adams, Massachusetts. the Employer's and area practice, economy, and effi- ciency. 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. The record establishes that there is no agreed-upon method for settling the dispute. The record also shows that on June 7 the business agent of the Carpenters told Emerson and the Employer's superintendent that the Carpenters claimed the disputed work and would not permit any of its members to perform tasks on scaffolding built by the laborers. Between that date and early August, when the work was temporarily assigned to the carpenters, the latter engaged in a partial work stoppage by refusing to perform any work which involved masonry scaffolding. Upon the Employer's reassignment of the disputed work to the laborers, the business representative reiterated his po- sition, the carpenters then engaged in partial work stoppage, and subsequently walked off the jobsite un- til October 3, the date of the injunction proceeding. In view of the foregoing, we find that there is rea- sonable cause to believe that there has been a viola- tion of Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determina- tion. C. Contentions of the Parties The Carpenters contends that the construction of all scaffolding in excess of 14 feet in height should be awarded to its members on the basis of its agreement with the Building Contractors of Northern Berkshire County, Massachusetts; 10 a decision by the Joint Board, dated July 6, 1968, involving a project in Mich- igan City, Indiana; an agreement dated April 23, 1963, between the Internationals of the Carpenters and Laborers with respect to disputes in the New England States;" and the Recommended Labor Poli- cy of AGC of Massachusetts. The Employer and the Laborers contend that the disputed work belongs to the laborers on the basis of 9 Civil No 72-I979-G 10 This agreement was for the period May I, 1969, to April 30, 1972, and incorporated by reference a Joint Board decision of April 28, 1926, awarding to the Carpenters erection of "self-supporting scaffolding over fourteen feet in height " 11 According to James V Merlon and Patrick J Mele, two officials of the Laborers, the latter terminated the agreement in 1969 because the Carpenters had not observed its terms E. Merits of the Dispute The record shows that the Employer, a general con- tractor which which has done its own masonry work since it began business in 1946, has followed the prac- tice of having its laborers erect scaffolding which is used primarily for masonry work. The laborers per- form that work during the lulls after they complete their duties as tenders for the masons. Although Em- erson testified that the carpenters also possess the necessary skills to erect the masonry scaffolding as- signed to the laborers, he found it more efficient and economical to assign the work of mason tending and the building of scaffolding to the same employees. The Employer's practice of assigning the disputed work to the laborers is in accord with the practice of other masonry contractors in the area. Although the Carpenters cites various agreements and Joint Board determinations, they are of little probative value in the instant proceeding as it appears that the 1963 agreement between the Internationals was terminated and the other agreements and determinations pertain 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to other areas or times. It is particularly significant that the Carpenters have no contracts with the mason- ry contractors in the area wherein the Employer and the jobsite are located. Other factors usually considered by the Board in jurisdictional dispute cases provide little assistance in determining the dispute. Thus, neither of the Unions has been certified. Although the original assignment to the laborers was made pursuant to the Employer's then current contract with the Laborers, the subse- quent assignments to the carpenters and then to the laborers follow no meaningful pattern. Upon the entire record, after full consideration of all relevant factors here involved, we believe that the work in dispute should be awarded to employees rep- resented by the Laborers. The fact that the Employer's assignment conforms to its own and area practice, the fact that the laborers employed by the Employer not only have the requisite skills but are familiar with all facets of the work, and the attendant efficiency and concurrent economies of utilizing the services of laborers as both mason tenders and erec- tors of masonry scaffolding lead us to conclude that the Employer's assignment of work to laborers is a proper one.12 Therefore, we shall assign the work in question to employees of the Employer who are repre- sented by the Laborers. In making this determination, which is limited to the controversy that gives rise to 12 See Newton, Massachusetts District Council, United Brotherhood of Car- penters and Joiners of A merica, AFL-CIO (Porrazzo and Hurley Co , Inc,), 177 NLRB 158, United Brotherhood of Carpenters and Joiners of America, Local No 213, AFL-CIO (General Masonry Inc), 175 NLRB 616 this proceeding, we are not assigning the work to the Laborers 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of George E. Emerson, Inc., who are represented by Local 473, Laborers International Union of North America, AFL-CIO, are entitled to perform the work of erecting masonry scaffolding at the construction site of the North Adams State Teach- ers College in North Adams, Massachusetts. 2. Local 193, 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 the Employer, George E. Emerson, Inc., to assign the above work to employees repre- sented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 193, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Re- gion 1, in writing, whether or not it will refrain from forcing or requiring the Employer, by means pros- cribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it rather than to employees represented by Local 473, Laborers International Union of North America, AFL-CIO.