Metallic Lathers Union Local 46

METALLIC LATHERS UNION LOCAL 46 557 Metallic Lathers Union of New York and Vicinity, Lo- cal 46, Wood, Wire and Metal Lathers International Union, AFL-CIO and Star Lathing and Furring Corp. and Interstate Lath, Plaster and Dry Wall Corp. and District Council of New York and Vicini- ty of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 2-CD-470 and 2-CD-471 July 28, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Star Lathing and Furring Corp., hereafter Star, and by Interstate Lath, Plaster and Dry Wall Corp., hereafter Interstate, alleging a viola- tion of Section 8(b)(4)(D) by Metallic Lathers Union of New York and Vicinity, Local 46, Wood, Wire and Metal Lathers International Union, AFL-CIO, hereafter the Lathers. The charge alleges, in sub- stance, that the Lathers threatened to picket, and did picket, Interstate with an object of forcing or requir- ing them to assign the installation of Imperial dry- wall to its members rather than to members of the District Council of New York and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereafter the Carpenters. Pur- suant to notice, a hearing was held on June 20-21, August 13-16, September 10-11 and 22-25, Novem- ber 14-15, and December 2, 1974, and January 14, 1975, at New York, New York, before Hearing Offi- cer Joel Spivak. All of the parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The Lathers, the Carpenters, Star, and Interstate filed briefs which have been duly considered by the Board.' 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 hearing are free from prejudicial error and are here- by affirmed. ' The Hearing Officer granted a motion to intervene by the Metropolitan Drywall Association of New York City and Vicinity, hereafter the Interve- nor Association, at the first day of the hearing . The Intervenor Association has filed a brief which includes, inter alia, a request for a broad order in this case. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYERS The parties stipulated that Star is a New York cor- poration with its offices in Bronx, New York, and that it is engaged in the business of lathing in the construction industry; and that Interstate also is a New York corporation with its offices in Queens, New York, and that it is engaged in the business of installing lath, plaster, and drywall in the construc- tion industry. The parties further stipulated that, in the course and conduct of their respective businesses, Star and Interstate each annually receives gross reve- nues in excess of $500,000 and that each annually purchases goods directly from outside the State of New York which are valued in excess of $50,000. We find that Star and Interstate are 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 ORGANIZATION INVOLVED The parties stipulated, and we find, that the Lath- ers and the Carpenters are labor organizations within the meaning of Section 2(5) of the Act. A. Facts Interstate is engaged in the business of installing lath, plaster, and drywall in the construction industry in the New York City area. At the time the dispute arose herein, Interstate was installing Imperial board at a jobsite on 22nd Street in New York City. Star, which has a collective-bargaining agreement with the Lathers, was not involved in the disputed work at the 22nd Street site. Star and Interstate have common officers. The disputed work involves the installation of Im- perial board. The record shows that metal floor and ceiling runners (the track) and metal studs are erect- ed to receive the Imperial board which is secured by screws, nails, or an adhesive. The Imperial board re- ceives a veneer plaster finish, applied by plasterers. The application of the veneer plaster finish is not part of the disputed work here. The record shows that Interstate had assigned the disputed work at the 22nd Street site to employees represented by Carpenters during the second week of April 1974.2 On April 29, the Lathers business agent, Peter McGovern, telephoned Salvatore Magistro, Interstate's secretary, and asked him whether Inter- 2 All dates hereafter are 1974. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD state was using employees represented by the Car- penters to install Imperial board at the 22nd Street site. Magistro answered "yes" and McGovern re- sponded, "Then I will have to do what I have to do." The next day and for the succeeding 2 days the Lath- ers picketed the 22nd Street site . McGovern admitted at the hearing that the picketing was precipitated by Interstate's assignment of the disputed work to em- ployees represented by the Carpenters. Thereafter, McGovern also sent telegrams to Lathers foremen working for Star (Magistro is an officer of both Star and Interstate) directing them no longer to permit the transfer of employees from job to job, a move intended to put pressure on Interstate to change the assignment of the disputed work . The record further shows that the Lathers made demands for , and en- gaged in other work stoppages related to obtaining, Imperial board work for its members both prior to and after the 22nd Street incident. B. The Work in Dispute As described in the notice of hearing issued by the Regional Director on May 28, 1974, the work in dis- pute involves "the work of installing Imperial dry wall by Interstate Lath, Plaster and Drywall Corp." More specifically, this work may be described as the installation of metal floor and ceiling runners, metal studs, and gypsum board to which is applied a veneer plaster finish . The particular gypsum board in the instant dispute is one manufactured by U.S. Gypsum Company and carries the brand name "Imperial." C. Contentions of the Parties The Lathers contends that there is an agreed-upon method binding on all the parties for the resolution of the dispute. Accordingly, it urges that the dispute is not properly before the Board and that the instant proceeding should be quashed . Additionally, the Lathers claims , in any event, that its members are entitled to the work in dispute by reason of previous assignments by Interstate , area practice, economy and efficiency of operations , and decisions of tribu- nals awarding it the type of work in dispute here. The Lathers further contends that the installation of Im- perial board is similar to the installation of lath in that both receive a plaster finish , and different from the installation of regular drywall which it concedes is work performed by carpenters in New York City. Interstate and the Carpenters take the position that Interstate's assignment of the disputed work was justified by Interstate's collective-bargaining agree- ment with the Carpenters, area practice, as well as skills possessed by the carpenters , and economy and efficiency of operations . Interstate denies that it has a contract with the Lathers or that it is bound by the New York plan. Interstate and the Carpenters fur- ther contend that the only difference between the in- stallation of Imperial board and the installation of regular drywall is the finish which is applied after the walls are erected . In this connection, Interstate and the Carpenters point out that the finish is applied by plasterers and not by members of the Lathers or Car- penters. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 the parties have not agreed upon a method for the voluntary adjustment of the dispute. The record shows that on April 29 the Lathers business agent, McGovern, asked Interstate's secre- tary, Magistro, whether Interstate was using employ- ees represented by the Carpenters to do the Imperial board work at the 22nd Street site . Magistro an- swered "yes" and McGovern responded, "Then I will have to do what I have to do." The next day and for the succeeding 2 days the Lathers picketed the 22nd Street site. McGovern admitted at the hearing that the picketing was precipitated by Interstate's assign- ment of the disputed work to employees represented by the Carpenters rather than to employees repre- sented by the Lathers. The record also contains num- erous other instances where the Lathers sought to effect a change in the assignment of the installation of Imperial board work . On the basis of the foregoing and the entire record, we find that an object of the Lathers threats and picketing was to force or require Interstate to assign the disputed work to employees represented by the Lathers. Further, we do not find merit in the Lathers con- tention that all the parties are bound by the same voluntary method for resolving the dispute. The rec- ord shows that Interstate was not a signatory to an agreement with the Lathers and there is no showing that Interstate has voluntarily agreed to be bound by the New York plan, as the Lathers claims. Nor do we find that Interstate is bound by Star's contract with the Lathers . In this connection, we note that Salva- tore Magistro , an officer of both Star and Interstate, signed a contract on behalf of Star with the Lathers, but told the Lathers that they would have to contact Louis DeBono about signing a contract on behalf of Interstate with the Lathers. Accordingly, we conclude that on the basis of the entire record there is reasonable cause to believe a METALLIC LATHERS UNION LOCAL 46 559 violation of Section 8(b)(4)(D) has occurred and that at the time of the instant dispute there did not exist any agreed-upon or approved method for resolving the dispute to which all parties are bound. Therefore, the matter is properly before the Board for determi- nation. balance we do not find the work related to the instal- lation of Imperial board to be so closely related to the traditional work jurisdiction of either of the two competing groups as to be a factor in favoring the assignment of the work to one group as opposed to the other. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work af- ter giving due consideration to and balancing all rele- vant factors.' The following factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified as collective-bargaining represen- tative for a unit of the Employer's employees. The record shows that Interstate signed a collec- tive-bargaining agreement with the Carpenters on April 6, 1973, and that this agreement, current at the time of the dispute here, provides, inter alia, that em- ployees represented by the Carpenters will perform: All work in connection with the installation and erection of gypsum wallboard to receive a ve- neer coat of plaster or lath to receive traditional plaster if such materials are to be secured to nailable or screwable metal studs. Contrary to the contention of the Lathers, the rec- ord shows that Interstate was not a signatory to an agreement with the Lathers. We find that Interstate's contract with the Carpen- ters supports the latter's claim for the disputed work. 2. Similarity of work involved to work regularly performed by claiming employees The record shows that the work of installing Impe- rial board is almost identical to that regularly per- formed by the carpenters in installing drywall. On the other hand, the record also shows that this work is also similar to the work regularly performed by Lathers in installing metal lathe. Moreover, in com- paring the function of Imperial board in relation to what it replaces or acts as a substitute for, it would appear that Imperial board is used more often to re- place or substitute for metal lathe and other lathing alternatives than it is used in place of drywall, which arguably itself is a lathing substitute. However, on 3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A Jones Construction Company). 135 NLRB 1402 (1962). 3. Assignment, preference, and efficiency of operations Under Interstate's existing assignment, the em- ployees represented by the Carpenters who are per- forming the disputed work also are available to per- form regular drywall work, as well as related tasks such as the installation of door bucks, an integral part of any room. On the other hand, it would appear that Interstate would lose this flexibility if the disput- ed work were assigned to employees represented by the Lathers. We find this factor favors assignment to the employees represented by the Carpenters. 4. Skills The employees represented by the Carpenters have demonstrated to the satisfaction of Interstate that they have the knowledge and skill to perform the disputed work. It appears from the record that em- ployees represented by the Lathers also possess the skills necessary to perform the disputed work. Hence, we conclude that this factor favors neither party. 5. Interstate's and area practice The record shows that Interstate used employees represented by the Lathers to perform at least three jobs involving the installation of Imperial board prior to the assignment of the disputed work here to employees represented by the Carpenters. Interstate points out that these three jobs involved a minimal amount of Imperial board work and that they oc- curred shortly after it commenced operations and prior to the time that it had a regular crew of carpen- ters available. In each instance, the lathers used by Interstate were transferred from Star and the lathers were already on the jobsite . The first major job in- volving the installation of Imperial board undertaken by Interstate was at the 22nd Street site . Interstate assigned this Imperial board work to employees rep- resented by the Carpenters and has assigned all other Imperial board work since then to employees repre- sented by the Carpenters. Interstate, the Lathers, and the Carpenters each introduced evidence to support its respective conten- tions relative to the assignment of Imperial board work in the New York City area. Much of this evi- 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dence involved work outside the City of New York. We find that this evidence does not establish any clear and consistent practice which would assist us in making our determination. 6. Awards and agreements We can accord no weight to the decision under the New York plan, relied on by the Lathers, in view of the decision by the Impartial Disputes Board that the so-called "Status quo" agreement between the Car- penters and Lathers Internationals ousted local bod- ies, such as BETA under the New York plan, from deciding disputes involving the type of work involved here. Conclusions Having considered all the pertinent factors herein, we conclude that the employees represented by the Carpenters are entitled to perform the work in dis- pute. In making this determination, we are assigning the disputed work to the employees represented by the Carpenters, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding.' 4 Although the Lathers are insistent that the type of work involved herein should be awarded to employees it represents, and it may continue to at- tempt to obtain such work in the future , we do not believe that the evidence presented in this proceeding is sufficient to show that this Union has a proclivity to violate Sec. 8(b)(4XD) of the Act in order to enforce such demands. We therefore limit the scope of the award to the situs involved in the instant dispute. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. The employees represented by District Council of New York and Vicinity of the United Brother- hood of Carpenters and Joiners of America, AFL- CIO, are entitled to perform the installation of metal floor and ceiling runners, metal studs, and gypsum board to which is applied a veneer plaster finish, at the jobsite on 22nd Street in New York City. 2. Metallic Lathers Union of New York and Vi- cinity, Local 46, Wood, Wire and Metal Lathers In- ternational Union, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Interstate Lath, Plaster and Dry Wall Corp. to assign such work exclusively to indi- viduals represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Metallic Lathers Union of New York and Vicinity, Local 46, Wood, Wire and Metal Lathers International Union, AFL- CIO, shall notify the Regional Director for Region 2, in writing, whether or not it will refrain from forcing or requiring Interstate Lath, Plaster and Dry Wall Corp., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination.