Carpenters District Council for Kansas City and Vicinity

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America , District Council for Kansas City and Vicinity, AFL-CIO, and United Brotherhood of Carpenters and Joiners of America, Local 1271, AFL-CIO' and Springfield Metal Building Com- pany and Fram Corporation, Case 17-CD-186 May 12, 1975 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Springfield Metal Building Company, Springfield, Missouri, herein called the Charging Party, alleging that United Brotherhood of Carpenters and Joiners of America, District Council for Kansas City and Vicinity, AFL-CIO, and United Brotherhood of Carpenters and Joiners of America, Local 1271, AFL-CIO, herein called the Respondents or Carpen- ters, have violated Section 8(b)(4)(D) of the Act. The charge alleges, in essence, that the Carpenters, in viola- tion of the Act, threatened and actually took economic action against the Fram Corporation, herein called the Employer, to force the Fram Corporation to assign particular work to members of the Carpenters rather than to the corporation's own employees. A hearing was held before Hearing Officer Ward Summerville in January 1975. The Charging Party, the Employer, and the Carpenters entered an appearance 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 Employer filed a brief. Pursuant 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 hear- ing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I BUSINESS OF THE COMPANY Fram Corporation is a Delaware corporation main- taining its general offices in East Providence, Rhode Island, and plants in Phillipsdale, Rhode Island; Greenville, Ohio; Clearfield, Utah; and Dexter, Mis- souri. This proceeding involves the construction of its 1 The names of the labor organizations are amended to appear as stipu- lated at the hearing plant at Nevada, Missouri. During the past 12 months, it purchased goods and materials directly from sources outside the State of Missouri of a value in excess of $50,000. We find that Frain Corporation is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Re- spondents are labor organizations within the meaning of Section 2(5) of the Act. III DISPUTE A. Summary of Some of the Testimonial Evidence Frain Corporation entered into a contract with the Charging Party who has, since April 1974, functioned as the general contractor constructinga Frain Corpora- tion plant in Nevada, Missouri. It is Fram's intention to manufacture large air cleaner housings and car- tridges at this plant. The processes to be used in such manufacturing include sheet metal forming with punch presses, filter paper pleating and curing, spot welding, degreasing, painting, baking, assembling, and packag- ing. By early September 1974, construction of the new building was sufficiently completed so that Fram could begin bringing in machinery to be set up for the manu- facturing process. Around that time, the Employer be- gan to hire maintenance employees to unload, set up, and install the production machinery. During the first week of September, after the unload- ing of machinery had begun, Plant Manager Jay O'Neil testified that he was visited by Kenneth Marshall and William J. Ruby, Jr., two of the Carpenters District Council's business representatives. At that time, Ruby told O'Neil that, "We're going to set up your equip- ment for you." Ruby and Marshall explained to O'Neil that millwrights were included within the Carpenters District Council and that the type of work Fram em- ployees were engaged in was "their work and they should be doing it." O'Neil explained to them that it was Fram's policy to hire its own employees to perform this work and that the Employer was paying them area standard wages for maintenance employees based on a wage survey conducted by the Employer. Both Marshall and Ruby gave testimony which con- flicts with O'Neil's version of the meeting. In particu- lar, both testified that they were never informed that the Employer planned on assigning the millwright work to its own employees. In early October after erection and installation of the plant production machinery was started, Marshall 217 NLRB No. 140 CARPENTERS DISTRICT COUNCIL FOR KANSAS CITY AND VICINITY again visited the plant. According to O'Neil, Marshall once again told O'Neil that the type of work Fram employees were doing was millwright work and that it should be assigned to the Carpenters. O'Neil testified that, after he told Marshall that the Employer planned to continue using Fram employees to do the installing, Marshall reminded him that the building was not yet completed, that there were plumbers, electricians, and sheet metal employees still doing their respective types of work, and that "something could happen to slow or stop the work on the building." O'Neil accused Mar- shall of threatening illegal conduct and Marshall de- nied that was his intent. Marshall admitted that, at the time of this meeting, he knew that the Employer planned on assigning the work to its maintenance employees and that he did state that other union members of the site might be affected by any problems over the assignment of the work. O'Neil testified that on October 14 he was visited once again by Marshall and Ruby who were accom- panied by the business representatives of three of the unions whose members were working on the construc- tion site. According to O'Neil he was asked by Mainey, the plumbers' business representative, what wages were being paid the maintenance employees and why, if other union members were working on the site, did Frain hire its own employees to do the millwright work. O'Neil testified that at the conclusion of their discussion Mainey said to Marshall and the others with hire, "There is nothing else to do here, let's go do what we have to." At the hearing, Marshall denied attending this meet- ing and Ruby testified that the conversation as related by O'Neil never occurred. Ruby testified that a few days later he visited the plant again and that, after O'Neil told him that Fram's employees doing the millwright work were being paid $3.50 to $5 per hour, he told O'Neil that the people doing this type of work should be paid the area stand- ard wage for millwrights which was $8.62 per hour plus 93 cents "fringes." In a letter dated October 28, 1974, the Carpenters claimed jurisdiction of the millwright work being per- formed at the Nevada, Missouri, plant. After asserting that Fram was not paying union scale rates to the employees performing the millwright work, the letter informed the Employer that the Carpenters intended to use picket signs for the sole purpose of letting the gen- eraJ public know that the Employer was "maintaining sub-standard wage rates and working conditions for the persons performing millwright work. . . ." The pick- eting began on October 31 and continued until Novem- ber 7, when the Respondents were satisfied that no 929 millwright work was then being performed by Fram's maintenance employees. After picketing began, the Employer established an entrance for its employees and suppliers and a separate entrance for the Charging Party's employees, its sub- contractors, and their suppliers. Each entrance was marked with signs explaining whose employees were to use the gate. The Respondents picketed both gates, and two witnesses, one of whom was a foreman for the Charging Party and the other an employee for a sub- contractor, testified that they were encouraged by one of the pickets not to cross the picket line. As a result of the picketing construction slowed "almost to a halt." Following the termination of picketing, O'Neil met with Henry Brown, president of the Carpenters Dis- trict Council, and Business Representative Marshall. The testimony describing this meeting conflicts. O'Neil testified that the purpose of the meeting was to resolve the differences between the Carpenters and Fram and that during the meeting, to satisfy the Respondents, he suggested that two union millwrights be hired by Fram. According to O'Neil, at no time during the meeting was the subject of area standard wages for the employees doing the millwright work discussed. Brown testified that their only purpose in attending the meeting was to secure for the employees doing millwright work the prevailing wages paid union millwrights and that it was O'Neil's suggestion that two of Respondent's members be hired. O'Neil testified that these two men were never in fact hired because the Employer's general offices would not accept the arrangement. The millwright work, with Fram's employees per- forming it, resumed in early December and it is an- ticipated that it will continue until at least July 1975. B. Work in Dispute The work in dispute consists of the unloading, in- stalling, and setting up of the plant production machin- ery and equipment at the Fram Corporation plant at Nevada, Missouri. C. Contention of the Parties The Employer contends that there is reasonable cause to believe that Section 8(b)(4)(D) has been vi- olated. It asserts that, during the September and Octo- ber meetings at the plant, Respondents never requested that area standard wages for millwrights be paid to the Employer's maintenance employees. In its view, the evidence supports the findings, that, after the work was begun, the Respondents requested that the work be given to their members and then threatened to slow down completion of the plant and picketed the con- struction site in an attempt to force a reassignment. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . The Employer also contends that , considering the skills of the employees, efficiency and economy of oper- ation, company practice, job impact, and the Em- ployer's preference, the work should remain, as as- signed, with the maintenance employees. Finally, the Employer urges the Board to reject the Respondents' disclaimer of interest submitted at the hearing. It argues that a disclaimer is not supported by the evidence, does not alter the nature of this dispute, and that its language reflects Respondents' continuing interest in the work. The Carpenters contends that there are no compet- ing claims to the work under consideration. The Car- penters argued at the hearing that after they were in- formed that the Employer intended to assign the millwright work to the maintenance employees, their only interest was in securing area standard wages for the employees involved. Throughout the hearing, the Respondents claimed no interest in having the Employer assign the work to their members . They argued that prior to the picketing they informed the Employer that their only interest was in securing area standard wages for the maintenance employees and, in further evidence of their position, they submitted a written disclaimer into evidence at the hearing. D. Applicability of the Statute Section 10(k) of the Act directs the Board to hear and determine disputes out of which 8(b)(4)(D) charges have arisen in circumstances where the assignment of the work is in dispute. In this case, we find it unnecessary to make any determinations with respect to the positions advanced by the parties . While it may be true that conflicting claims to the work involved did exist , the Respondents continually stated at the hearing no interest in an as- signment of the work involved. At the close of the hearing they submitted into evidence a written dis- claimer which stated, among other things, their lack of interest in an assignment of the work or in an award in this proceeding.' There is no evidence, that, since the resumption of the work in December, the Respondents have manifested desires or taken action inconsistent with their disclaimer. In these,circumstances, we agree with Respondents' contention that the assignment of the work is not in dispute and we shall therefore quash the notice of hearing? ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. 2 In pertinent part, Respondent stated in the written disclaimer Comes now United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City and Vicinity, and its affiliated Local Union No 1271, AFL-CIO, and, herewith, formally and of record in this case, disclaim any desire, intent, object or purpose of forcing or requiring Fram Corporation to assign the work of unloading, installing and setting up the plant production machinery and equipment at the Fram Corporation plant building at or near Nevada, Missouri, to these labor organizations rather than to employees of the Fram Corpo- ration, or to have the Fram Corporation discharge, terminate or transfer the employees who are now performing the said work and replace them with millwright members of these labor organizations Disclaimers of any such desire, intent, object or purpose was, previously, given by these labor organizations in its letter to the Fram Corporation dated October 28, 1974, copies of which are introduced in evidence in these proceedings These labor organizations do not seek, and have not at any time while the said work was being performed sought, an assignment of the afore- said work They do not seek or desire an award in regard to the said work in this proceeding, and respectfully submit that, under the facts in this case, the National Labor Relations Board does not have jurisdic- tion to proceed either under Section 8(b)(4)(D) or Section 10(k) of the Labor Management Relations Act, and move and request that this proceeding be dismissed- - 3 Sheet Metal Workers Local Union No 465 (Thorpe Insulation Company), 198 NLRB 1245 (1972), Local 1905, Carpet, Linoleum & Soft Tile Layers (Southwestern Floor Co), 143 NLRB 251 (1963), Millwrights and Machinery Erectors Local 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Port Huron Sulphite and Paper Company), 140 NLRB 79 (1962).