United Brotherhood of Carpenters Local No. 171

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Local No. 171, AFL-CIO and Builders Association of Eastern Ohio and Western Pennsyl- vania and Knowlton Construction Company and Laborers' International Union of North America, Local No. 125, AFL-CIO United Brotherhood of Carpenters and Joiners of America, Local No. 171, AFL-CIO and Laborers' International Union of North America, Local No. 125, AFL-CIO and Knowlton Construction Com- pany. Cases 8-CD-255 and 8-CD-256 November 19, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges by Builders Association of Eastern Ohio and Western Pennsylvania, herein called Associa- tion, on behalf of Knowlton Construction Company, a member, herein called- Knowlton or Employer, and Laborers' International Union of North America, Local No. 125, AFL-CIO, herein called Local 125 or Laborers, alleging that the United Brotherhood of Carpenters and Joiners of America, Local No. 171, AFL-CIO, herein called Local 171 or Carpenters, had violated Section 8(b)(4)(D) of the Act. The charges allege, in substance, that Local 171, by encouraging its members to cease working, violated the Act in that the purpose of such conduct was to force the Employer to assign certain work to its members rather than to members of Local 125. Pursuant to an order consolidating cases and notice of hearing, a hearing was held in Youngstown, Ohio, before Hearing Officer William M. Kohner, on March 29 and April 2, 1973. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. 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 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, including the briefs filed by Locals 125 and 171, the Board makes the following findings: I. BUSINESS OF THE EMPLOYER The parties stipulated that the Knowlton Construc- tion Company is an Ohio corporation, with its main office at Bellefontaine, Ohio, where it is engaged in the business of general building construction con- tracting. Annually, in the course and conduct of its business, it receives products in excess of $50,000 directly from points located outside the State of Ohio. In addition, it was general contractor for the Copeland Oaks Nursing Home project located in Sebring, Ohio, at which site it annually received products valued in excess of $50,000 directly from points located outside the State of Ohio. According- ly, we find that the Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdic- tion herein. The parties stipulated and we find that the Builders Association of Eastern Ohio and Western Pennsylva- nia is an association representing contractors in the above area, including Mahoning County, Ohio, and that the Employer is a member of the Association. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that the Carpenters Local 171 and Laborers Local 125 are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer was awarded a contract to construct three additional wings to the existing Copeland Oaks Nursing Home, located in Sebring, Mahoning County, Ohio. The Employer started construction on this project in June 1972. The work on the project consisted of concrete slab and block construction. The Employer assigned the construction of and the dismantling (releasing) of concrete form materials to the carpenters, members of Local 171. It assigned the stripping, which consisted of handling, cleaning, stockpiling, and removal of the materials after the same were released and dropped by the carpenters, to the laborers, members of Local 125.1 In November 1972 the business agent for Local 125 demanded that the Employer's job superintendent, Bowdle, assign the releasing of the forms at the final 1 During the course of the hearing the terms "releasing" and "stripping" materials used in the forms after they have been dropped by the carpenters, were often used interchangeably However, for the purpose of this decision and shall include cleaning, oiling, removal of nails previously bent by the "releasing" shall be limited to the act of removing the forms, after the carpenters, stockpiling, preparation for removal of form material to other concrete pour, and dropping such forms for further handling by laborers. In levels or to any other locations, whether on the jobsite or to the contractor's similar manner the term "stepping" will include only the handling of stockpile facilities. 207 NLRB No. 57 UNITED BROTHERHOOD OF CARPENTERS LOCAL NO. 171 407 level (ceiling under the roof) to laborers, members of Local 125. Bowdle, before acceding to Local 125's demand, contacted Paul W. Carlson, assistant to the labor relations director for the Association. After informing Carlson that both Local 125 and Local 171 were claiming the final strip (release) of concrete forms, Bowdle asked what was the practice in the area. Carlson responded that the Association informs its members that the area practice is for carpenters, members of Local 171, to do the releasing (or final strip). Bowdle then contacted Detwiter, labor rela- tions director for the Employer, and told the latter of the two locals' demands as to the final releasing. Carlson likewise subsequently informed Detwiter that the Association recommended that all final releasing be performed by carpenters. Detwiter informed Carlson that it was the Employer's practice to assign that work to laborers. On or about December 18, 1972, the Employer assigned the work to the laborers, members of Local 125. From on or about January 4, 1972, until on or about January 12, 1973, no carpenter reported for work at the Employer's project although there was work available for carpenters. On or about January 4, 1973, according to the uncontradicted testimony of Carlson, Ted Kramer, business agent for Local 171, stated to Carlson that the reason why the carpenters were not working on the project was because the Carpenters claimed the work in dispute. B. The Work in Dispute The work in dispute involves the releasing of the forms used in concrete construction, after the final pour, at the roof or final level only.2 C. The Contentions of the Parties The Carpenters denies that it has engaged in any conduct cognizable under Section 8 (b)(4)(D), con- tending that it sought solely to have the Employer abide by its existing contract with the Carpenters. Carpenters also argues that , in any event, the carpenters it represents are entitled to the work in dispute for the following asserted reasons: (1) The Employer's reassignment was contrary to both the terms of an interunion agreement binding on the two Unions here involved and to the terms of the Carpenters contract with the Employer; (2) the carpenters can more skillfully, efficiently, and safely do the work; and (3) the area practice in Mahoning County, Ohio (locale of the dispute), calls for the assignment of releasing (or stripping) to the carpen- ters it represents. 2 No dispute existed as to the performance of this work at any other level, initial or intermediate. 3 Paul W. Carlson, assistant to the labor relations director for the The Employer contends that the work in dispute should be assigned to employees, members of the Laborers Union. It argues that its assignment of the final releasing of forms was consistent with its past practice. Laborers contends that the assignment made by the Employer was proper and in accord with the Employer's past practice. Further, it contends that the assignment is consistent with the collective- bargaining agreement between it and the Employer, with awards previously made by the National Jurisdictional Board, and with an agreement dated October 3, 1949, between the two International Unions. In addition, it contends that its members possess the requisite skills to perform ,the disputed work in a safe and efficient manner. 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. On the record before us, we find reasonable cause to believe that Local 171 induced and encouraged carpenters who were its members to refrain from working on any part of the Employer's project between on or about January 4 and January 12, 1973, with an object of forcing and requiring the Employer to assign the disputed work to its members rather than to members of Laborers.3 As such conduct clearly falls within the proscription of Section 8(b)(4)(D) of the Act, we find that the dispute is properly before us for determination under Section 10(k) of the Act. The parties hereto having so stipulated , we find that at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute are bound . Accordingly, we shall proceed to a determination of the merits of the dispute. 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 involved. The following factors are relevant in making a determination of the dispute before us. Association, testified, without contradiction, that Kramer, business agent for the Carpenters, said that the reason carpenters had not reported for work was that the Carpenters claimed the work in dispute. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Certifications and collective-bargaining agreements There is no Board certification determining the bargaining representative for the employees assigned the work in dispute. Neither of the labor organiza- tions involved herein has been certified by the Board as collective-bargaining representative for a unit of the Employer's employees. The Employer, as a member of the Builders Association of Eastern Ohio and Western Pennsylva- nia (AGC), is a party to collective-bargaining agreements with both of the labor organizations involved (Locals 171 and 125). Both of the collective- bargaining agreements were submitted in evidence. However, neither contract gives a clearcut answer to the question as to which craft should be assigned the final releasing of forms after the last pour of concrete. Both contracts' jurisdictional provisions refer to the work of "dismantling forms," and the Carpenters contract qualifies this by the phrase "as per International Agreement." It is not clear whether the qualification in the Carpenters contract had reference to an agreement entered into between both Internationals on October 3, 1949.4 This latter agreement, submitted in evidence, does not categori- cally assign the releasing of the disputed work to the Laborers. It appears from a preponderance of the evidence in the record that this agreement was never given effect in the area of the dispute. In fact Locals 171 and 125 in 1957 entered into an agreement which in substance abrogated the 1949 agreement. This 1957 agreement in effect gives the carpenters all form work, without qualification, including the release of the forms, with laborers assigned the work "to clean, oil and carry the same (forms) to the next point of erection or to a stockpile." The Laborers claims that this 1957 agreement was canceled. The record discloses that the Laborers notified the Carpenters and the Builders Association of Mahoning Valley (Ohio) unilaterally that the 1957 agreement was no longer in effect. In addition, the record refers to a memorandum prepared by the Employer after an earlier dispute on this same project over the bending of nails in forms. This memorandum purports to describe and summa- rize an understanding reached at a meeting of all parties that all stripping work was carpenters' work. But there is conflicting evidence as to whether the stripping work referred to in that memorandum was that involved in "final" as distinguished from "intermediate" stripping. The alleged memorandum of agreement therefore affords no aid with respect to the dispute before us. In view of the conflicting evidence as to -the interpretation given to the collective-bargaining agreements and the above-mentioned other agree- ments, we are of the opinion that this factor does not support the claim of either Union. 2. National Joint Board awards The Laborers presented in evidence several Na- tional Joint Board awards which it contends support its position. These awards, copies of which were submitted in evidence, are of no probative value in assisting the Board in this matter, since as to time and location they have no bearing in the area of the dispute. 3. Employer's assignment and past practice The Employer in making the assignment contends that its assignment of the disputed work to laborers was in accord with its past practice. The evidence offered by the Employer and Laborers appears to support the Employer's contention with respect to other areas in which the Employer operates. Howev- er, the record evidence does not support the Employers' and Laborers' contention with respect to work assignments in the area we are immediately concerned with here, inasmuch as the Employer has not customarily operated in this area. 4. Area practice The record evidence clearly indicates that under uniform area practice the type of work in dispute is predominantly performed by carpenters represented by Local 171. Representatives of the Builders Association, numerous contractors, building con- struction superintendents, and construction engineers -also engaged in performing construction projects in the instant area-testified without exception, that the kind of work here in dispute is and has historically been performed by carpenters. On the basis of the record, we find that area practice favors an award to Carpenters. 5. Relative skills, efficiency, and economy of operations There is unquestionable record support for a finding that Carpenters' members have the skills required to perform the work in dispute and that they have considerably greater experience in doing it than do Laborers' members to whom the Employer has now assigned the work. Carpenters' members have historically built, installed, and disassembled forms of the type here involved at all stages-the initial, 4 The record shows that the Laborers, in demanding its members be representative a copy of such agreement to bolster their demand. assigned the final release work by the Employer, showed the Employer's UNITED BROTHERHOOD OF CARPENTERS LOCAL NO. 171 409 intermediate, and final ones. And, indeed, they were assigned all of these tasks by this Employer, save only those involved in the disassembly of the forms at the final (ceiling) stages. As there is no question that the final assembly tasks did not differ in character from those involved in disassembling the same forms at the precedent stages of the Employer's project, it follows that the same skills were required for those tasks as well. Although Laborers' members have not historically performed tasks of the kind here in dispute on any regular basis, it appears that, nonetheless, they possess sufficient skills to do the work to the Employer's satisfaction.5 We conclude from the above that, although the skill factor may be a relatively neutral one as between the two Unions here involved, the factor of experience favors the Carpenters claim. With respect to economy, the only showing of economy lies in a lower wage scale for laborers than for carpenters. We do not regard differences in wage rates as a factor. Conclusion We have here a situation in which the Employer's assignment of the disputed tasks to laborers instead of carpenters is in conflict with well defined area practice and is affirmatively supported only by the difference in wage scales, which is not regarded by us as a determinative factor. In prior cases involving similarly postured disputes 5 We note, however, some evidence tending to indicate that when initially assigned the tasks by the Employer, laborers sought special instructions with respect thereto. 6 Cf. International Union of Operating Engineers, Local 4 (Joseph Rugo, in the construction industry, we have indicated- that we are reluctant to disturb area practice, in making our awards absent some compelling reason .6 To do so here solely on the basis of the Employer's assignment could, we believe, invite controversy in an area where effective guidelines have already been established. We therefore conclude that the employ- ees represented by Respondent are entitled to the work in question, and we shall determine the dispute in their favor. In making this determination, howev- er, we award the work to employees represented by Carpenters and not to that Union or its members. Further, and in accord with our normal policies, we shall confine this award to the project at which this dispute arose. 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 hereby makes the following Determination of Dis- pute. Employees employed by Knowlton Construction Company, who are represented by United Brother- hood of Carpenters and Joiners of America, Local No. 171, AFL-CIO, are entitled to perform the work in dispute which involves the final releasing of forms used in concrete construction after the final concrete pour at the Copeland Oaks Nursing Home, at the jobsite located in Sebring, Ohio. Inc.), 198 NLRB No 124; and Local No 6, International Association of Bridge, Structural & Ornamental Ironworkers (Spancrete Northeast, Inc.), I96 NLRB 1182.