Carpenters Local 1207 (Carlton, Inc.)

71 313 NLRB No. 4 CARPENTERS LOCAL 1207 (CARLTON, INC.) 1 All dates are in 1993 unless indicated otherwise. 2 The hearing officer rejected Bricklayers’ Exh. 5 on the grounds that the document, a copy of a letter from the Tile Contractors’ As- sociation of America, Inc. to the general president of Carpenters, did not constitute a business record. Bricklayers excepts to the hearing officer’s ruling and requests that the record be amended to include the document. We find no merit to Bricklayers’ exception. Brick- layers has not established that the document was kept by Bricklayers in the course of regularly conducted business activity. Thus, it does not qualify under the business record exception to the hearsay rule. See Fed.R.Evid. 803(6). Accordingly, we find that the document constitutes inadmissible hearsay and thus affirm the hearing officer’s ruling. 3 The record does not indicate whether Smith conferred with Campbell before or after Bricklayers filed its grievance against Carlton. United Brotherhood of Carpenters and Joiners of America, Local Union No. 1207, AFL–CIO (Carlton, Inc.) and Fred F. Holroyd and Camp- bell Tile Company. Case 9–CD–470 November 23, 1993 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH The charge in this Section 10(k) proceeding was filed by Fred F. Holroyd, alleging that the Respondent, United Brotherhood of Carpenters and Joiners of America, Local Union No. 1207, AFL–CIO (Car- penters), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Campbell Tile Company (Campbell) to continue assigning certain work to em- ployees it represents rather than to employees rep- resented by International Union of Bricklayers and Al- lied Craftsmen, Local Union 9, AFL–CIO (Brick- layers). The hearing was held August 20, 1993,1 before Hearing Officer Linda B. Finch. The National Labor Relations Board affirms the hearing officer’s rulings,2 finding them free from prej- udicial error. On the entire record, the Board makes the following findings. I. JURISDICTION Carlton, Inc. (Carlton), a West Virginia corporation, is a general contractor in the building and construction industry. During the 12 months preceding the hearing, a representative period, Carlton purchased goods and materials in excess of $50,000 from points outside the State of West Virginia which it caused to be shipped into the State of West Virginia. Campbell, a West Virginia corporation, is a tile spe- cialty operation. During the 12 months preceding the hearing, a representative period, Campbell purchased goods and materials valued in excess of $50,000 from outside the State of West Virginia which is caused to be shipped into the State of West Virginia. The parties stipulated, and we find, that Campbell and Carlton are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Carpenters and Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Carlton is signatory to collective-bargaining agree- ments with Carpenters and Bricklayers respectively. Both agreements cover tilesetting work. Carlton’s agreement with Bricklayers prohibits Carlton from sub- contracting work covered by the agreement unless the subcontractor agrees in writing to be bound by the terms of the Carlton-Bricklayers’ agreement. Carlton’s contract with Carpenters also prohibits subcontracting of covered work unless the subcontractor is signatory to an agreement with Carpenters or unless the sub- contractor agrees to be bound by the terms of the Carlton-Carpenters’ agreement. In July 1992, the State of West Virginia contracted with Carlton for the construction of the Mount Olive Correction Facility in Fayette County, West Virginia. In March, Carlton and Campbell entered into a sub- contracting agreement providing for Campbell to per- form tilesetting work at the Mount Olive facility. On June 7, Campbell entered into a collective-bargaining agreement with Carpenters covering, inter alia, tile- setting work performed by Campbell. In early July, Campbell began performing the tilesetting work at Mount Olive using employees represented by Car- penters. Thereafter, in early July, Bricklayers learned that Carlton had subcontracted the Mount Olive tilesetting work to Campbell. Concerned that Carlton had violated the subcontracting clause of its contract with Brick- layers, Bricklayers’ district counsel director, Leroy Hunter, sought a meeting with Carlton officials to re- solve the issue. Hunter was unable, however, to ar- range a meeting with Carlton officials, and thus Brick- layers filed a grievance against Carlton alleging that Carlton violated the subcontracting clause of its con- tract with Bricklayers. The grievance was set for arbi- tration. In addition, Bricklayers’ field staff representa- tive, Herbert Smith, contacted Campbell President Elmer Campbell and told him the Mount Olive tile- setting work belonged to employees represented by Bricklayers.3 By letter dated July 13, Carpenters’ business rep- resentative, Robert Sutphin, informed Elmer Campbell that Carpenters expected Campbell to honor its con- tract with Carpenters, and that if Campbell did not as- sign the work accordingly, Carpenters would picket the Mount Olive jobsite. 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Member Devaney finds, for the reasons stated in Laborers Local 731 (Slattery Associates), 298 NLRB 787, 790 (1990), that Brick- layers’ demand for the disputed work, as well as its filing a griev- ance over this subject, clearly demonstrates that Bricklayers has made a competing claim for the work. Member Raudabaugh finds that this case is distinguishable from Laborers Local 731 (Slattery Associates), supra. In Slattery, the union filed a grievance against the general contractor seeking only monetary damages. Here, Bricklayers has made an explicit claim for the disputed work and does not contend that its grievance against Carlton is limited to monetary damages. Accordingly, without decid- ing whether Slattery was correctly decided, Member Raudabaugh would find reasonable cause to believe that Bricklayers’ conduct constitutes a claim for work in the circumstances of this case. 5 Bricklayers now moves to amend the record to include a docu- ment purporting to be a collective-bargaining agreement between Campbell and Bricklayers. We deny Bricklayers’ motion on the grounds that the document has not been authenticated. 6 Bricklayers also contends that its collective-bargaining agreement with Carlton encompasses the disputed work. Assuming arguendo that the disputed work is encompassed by Bricklayers’ agreement with Carlton, this factor would not be relevant to the determination of this dispute. Under these circumstances, the Board has determined that it is the subcontractor’s collective-bargaining agreements, and not those of the general contractor, that are relevant. See Operating Engineers Local 139 (McWad, Inc.), 262 NLRB 1300, 1303 fn. 12 (1982). The Board has stated that the ‘‘[general contractor’s] con- tractual obligations cannot be conferred upon [the subcontractor], ab- sent record evidence establishing that [the subcontractor] had agreed to be bound by those obligations.’’ Iron Workers Local 21 (Lueder Construction), 233 NLRB 1139, 1140 (1977). B. Work in Dispute This disputed work involves the performance of tile- setting work at the Mount Olive Correction Facility in Fayette County, West Virginia. C. Contentions of the Parties Campbell and Carlton contend that there is reason- able cause to believe that Carpenters violated Section 8(b)(4)(D) of the Act by threatening to picket, and that the work in dispute should be awarded to employees represented by Carpenters on the basis of collective- bargaining agreements, employer preference and past practice, area and industry practice, and economy and efficiency of operations. Bricklayers contends that the instant case does not involve a jurisdictional dispute, but rather involves a contractual dispute to be resolved through arbitration of Bricklayers’ grievance against Carlton. Alter- natively, if the Board finds the instant case constitutes a jurisdictional dispute, Bricklayers contends the work in dispute should be assigned to employees it rep- resents on the basis of collective-bargaining agree- ments, area and industry practice, relative skills, and economy and efficiency of operations. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been vio- lated and that the parties have not agreed on a method for the voluntary adjustment of the dispute. As dis- cussed above, Carpenters’ business representative, Sutphin, in essence informed Campbell President Elmer Campbell that Carpenters would picket the Mount Olive jobsite if Campbell reassigned the dis- puted work to employees represented by Bricklayers. The record reveals no agreed-upon method for vol- untary adjustment of the dispute binding on all parties. In light of the foregoing, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has oc- curred and that there exists no agreed method for vol- untary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determina- tion.4 E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of the dispute. 1. Collective-bargaining agreements On June 7, Campbell entered into a collective-bar- gaining agreement with Carpenters covering, inter alia, ‘‘All work assignments involved in the preparation, in- stallation, finishing, repair and maintenance of tile, marble, terrazzo and dimensional stone.’’ Bricklayers’ field staff representative, Smith, testi- fied that in 1980 Campbell signed a contract with Bricklayers that renewed from year to year. Elmer Campbell testified that Campbell presently does not have a contract with Bricklayers, but that he could not recall if he had ever executed a contract with Brick- layers. At the hearing, Bricklayers did not offer any exhibit purporting to be a collective-bargaining agree- ment between Campbell and Bricklayers.5 We find that, as Campbell has a collective-bargain- ing agreement with Carpenters covering the disputed work, and as the preponderance of evidence does not establish the existence of a collective-bargaining agree- ment between Campbell and Bricklayers covering the disputed work, the factor of collective-bargaining agreements favors an award to employees represented by Carpenters.6 73 CARPENTERS LOCAL 1207 (CARLTON, INC.) 1 Although the record indicates that Bricklayers’ representative, Smith, told Campbell President Elmer Campbell that the Mount Olive tilesetting work belonged to Bricklayers-represented employ- ees, there is no evidence that Smith was seeking anything other than the enforcement of Bricklayers’ collective-bargaining agreement with Carlton. 2. Employer preference and past practice Elmer Campbell testified that he prefers to have the disputed work assigned to employees represented by Carpenters, and that the Carpenters-represented em- ployees currently performing Campbell’s tilesetting work at Mount Olive have been performing tilesetting work for Campbell for the past 6 to 10 years. Camp- bell also testified that he has used employees rep- resented by Bricklayers in the past, but he could not remember the specific years in which he employed Bricklayers-represented employees. Bricklayers’ field representative, Smith, testified that, at various times between 1981 and 1988, Brick- layers-represented employees performed tilesetting work for Campbell. Smith does not claim that Camp- bell has used Bricklayers-represented employees on a regular basis to perform Campbell’s tilesetting work. We find that the factor of employer preference and past practice favors an award to employees represented by Carpenters. 3. Area and industry practice Carpenters’ business agent, Robert Sutphin, testified that many area contractors have used Carpenters-rep- resented employees to perform their tilesetting work. Bricklayers’ representative, Smith, testified that various area contractors have performed tilesetting work using employees represented by Bricklayers, but that not all of the area tilesetting work is performed by Brick- layers-represented employees. The evidence indicates that the practice is mixed among Carpenters-rep- resented employees, Bricklayers-represented employ- ees, and employees not represented by either Car- penters or Bricklayers. We find that the factor of area and industry practice does not favor an award either to employees represented by Carpenters or to employees represented by Bricklayers. 4. Relative skills Elmer Campbell testified that the Carpenters-rep- resented employees who are currently performing the Mount Olive tilesetting work are skilled employees and are doing quality work. Bricklayers’ representa- tive, Smith, testified that employees represented by Bricklayers have been performing tilesetting work for over 43 years. We find that the evidence is inconclu- sive and therefore the factor of relative skills does not favor an award either to employees represented by Carpenters or to employees represented by Bricklayers. 5. Economy and efficiency of operations In its brief, Campbell asserts that assignment of the disputed work to employees represented by Bricklayers would require Campbell to use two sets of employees, i.e., Bricklayers-represented employees to set the tile and Carpenters-represented employees to finish the tile, rather than using one set of employees for both duties. The record does not, however, support this assertion. We find that the evidence is inconclusive and therefore the factor of economy and efficiency of operations does not favor an award either to employees rep- resented by Carpenters or to employees represented by Bricklayers. Conclusions After considering all the relevant factors, we con- clude that employees represented by Carpenters are en- titled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargain- ing agreements and employer preference and past prac- tice. In making this determination, we are awarding the work to employees represented by Carpenters, not to that Union or its members. The determination is lim- ited to the controversy that gave rise to this proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. Employees of Campbell Tile Company represented by United Brotherhood of Carpenters and Joiners of America, Local Union No. 1207, AFL–CIO are enti- tled to perform tilesetting work at the Mount Olive Correction Facility in Fayette County, West Virginia. CHAIRMAN STEPHENS, dissenting. In this case Bricklayers at no time engaged in any coercion or threats of coercion. Bricklayers has claimed the work in dispute on the grounds that Carlton’s subcontracting the work to Campbell violates the collective-bargaining agreement between Carlton and Bricklayers.1 Bricklayers has submitted a copy of that agreement. On the basis of that evidence and Bricklayers’ contentions, I find that it has at least an arguably meritorious claim that Carlton violated the signatory subcontracting provision of that agreement when it subcontracted the work to Campbell. For the reasons stated in my dissenting opinion in Laborers Local 731 (Slattery Associates), 298 NLRB 787, 790– 792 (1990), I would find that there are no competing claims for the work, and I would quash the 10(k) no- tice.