Carpenters District Council, Local 253, Etc.

National Labor Relations Board - Board Decisions

Jun 8, 1965

152 N.L.R.B. 1285 (N.L.R.B. 1965)

CARPENTERS DISTRICT COUNCIL, LOCAL 253, ETC. 1285
IT IS HEREBY ORDERED, pursuant to Section 102.25 and 102.35 (h) 10 of the Board's
Rules and Regulations , Series 8, as amended, that Respondent 's motion to dismiss
the complaint be granted , and that the complaint be accordingly dismissed in its
entirety.
IT IS FURTHER ORDERED that unless, pursuant to Section 102.27 of the aforesaid
Rules and Regulations , counsel for the General Counsel files with the National Labor
Relations Board a request for review of the action taken herein within 10 days from
the date of this Order the case shall be closed.
" United Steelworkers of America , AFL-CIO, and Local Union No 2140, et at (United
States Pope and Foundry Company ), 129 NLRB 375, enfd sub none . United States Pipe
and Foundry Company , 298 F 2d 873 (CA 5) , Cheery Rivet Company, 97 NLRB 1303,
footnote 1
Carpenters District Council , and Carpenters Local Union No. 253
and Wood, Wire & Metal Lathers International Union, Local
No. 136, AFL-CIO and Forman Bros . Cases Nos. 17-CD-64 and
17-CD-66. June 8, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National
Labor Relations Act, as amended, following charges filed by Forman
Bros., herein referred to as the Employer, alleging, in substance, that
Carpenters District Council and Carpenters Local Union No. 253,
herein referred to respectively as the Council and Local 253 and col-
lectively as the Carpenters, and Wood, Wire & Metal Lathers Inter-
national Union, Local No. 136, AFL-CIO, herein referred to as the
Lathers, violated Section 8(b) (4) (D) of the Act by engaging in con-
duct to force or require the Employer to assign certain disputed work
to employees represented by the respective Unions. A consolidated
hearing was held before Hearing Officer Hutton S. Brandon on Feb-
ruary 6 and March 8, 1965. The Employer, the Carpenters, and the
Lathers 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. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error and are hereby
affirmed. A brief was filed by the Lathers and has been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
Upon the entire record in this proceeding, the Board makes the
following findings :
A. The business of the Employer
The parties stipulated that during calendar year 1964, the Employer,
a partnership engaged in the building and construction industry, with
152 NLRB No. 129.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its principal office and place of business in Omaha, provided goods and
services valued in excess of $50,000 directly to customers or contractors,
located outside the State of Nebraska, and purchased building supplies.
valued in excess of $50,000 directly from suppliers located outside the
State of Nebraska. The parties stipulated, and we find, that the
Employer is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. We further find that it will effectuate the purposes
of the Act to assert jurisdiction herein.
B. The labor organizations involved
The parties stipulated, and we find, that Carpenters District Coun-
cil, its Local Union 253, and the Lathers are labor organizations within
the meaning of Section 2 (5) of the Act.
C. The work in dispute
The work in dispute is the erection and installation of metal studs
used in the construction of interior partitions. While such studs may
receive a surface of either plaster or drywall material, those here
involved were to receive drywall material.
D. The basic facts
The Employer is a subcontractor engaged in lathing, plastering,
and drywall acoustical construction. On August 10, 1964,1 it executed
a contract in connection with the remodeling of the 12th floor of the
Northwestern Bell Telephone Co. building in Omaha, calling for the
Employer, inter alia, to erect metal studs and an acoustical suspension
system to apply the drywall material.
Prior to the assignment of the studwork, Ferenstein, one of the part-
ners in the Employer, spoke to Lee, the Lathers' business agent, and
Deseck, assistant business agent of the Council both of whom claimed
the work. Ferenstein asked Lee to submit the matter to the National
Joint Board and on September 23, Lee wrote to his International
requesting submission of the disputes concerning the installation of
nailable metal studs to receive drywall on three projects on which the
Employer was the subcontractor, including the telephone company
project and the Notre Dame Academy project, discussed below. Fer-
enstein testified that Lee later told him the Joint Board would not act.
Campsey, the Employer's carpentry foreman, testified that prior to
the assignment of the studwork on the telephone company project,
Ferenstein, in the presence of Rigatuso, one of the Employer's car-
penters, told him about his discussion with Lee, and asked him to secure
documents from the Carpenters substantiating their claim, as he would
'Unless otherwise specified , all events occurred in 1964.
CARPENTERS DISTRICT COUNCIL, LOCAL 253, ETC. 1287
prefer to give the work to carpenters, whose wage rate. was 25 to 50
cents lower than that of the lathers. Rigatuso did not testify, and
Ferenstein denied having made these remarks to Campsey.
Ferenstein assigned the studwork to the lathers,2 and from the mid-
dle of September through October 1 from two to six lathers worked on
the erection of the floor and ceiling tracks into which the studs are
placed, and on the installation of the studs. Adams, the Employer's
lather foreman, testified that during the latter part of September,
Deseck came on the jobsite and told him, in the presence of Richards,
a lather, that he, Adams, should not be doing the studwork as it
belonged to carpenters.
The Employer subcontracted the work of applying the drywall to
a subcontractor named Wooldridge. There is conflicting testimony as
to whether Wooldridge and his men commenced Work on the project
on October 1 or about a week before. Wooldridge employed both car-
penters on his own payroll and those on the Employer's payroll, whose
wages were charged to Wooldridge.
Between 9 and 10 a.m. on October 1, Wooldridge and about six car-
penters working at the site walked off the job 3 Adams testified that
one of the carpenters told him they were leaving because "their busi-
ness agent told them to pull off." Bastemeyer, president and business
agent of the Omaha Carpenters District Council,4 stated that after the
walkout the carpenters told him that they took the position that the
studwork was their work, and he advised them that this was also the
Council's position.
When Ferenstein was advised of the walkout, he met with Lee and
Bastemeyer later that morning; both of them claimed the work and
no agreement was reached. Ferenstein and Lee then met with Kratz,
secretary of and attorney for the Associated General Contractors
Employers Association of Omaha, Nebraska, Inc.5 When Kratz
showed Ferenstein a Joint Board decision awarding metal stuclwork
to carpenters, Ferenstein told Lee that he would assign the remainder
of the studwork on the telephone company project to carpenters; he
later telephoned Deseck and advised him of this.
'rerenstem also assigned the work of installing the black iron and the hangers for
the acoustical ceiling system to the lathers but the Carpenters made no claim to this
work although they did claim the wo,k of erecting suspended ceilings in Omaha Carpen-
ters District Council ( Radacht Co ), 152 NLRB 1293, issued today , and ieferied to herein
as the Radachi Co. case or decision
'It is not clear whether this walkout was limited to the carpenters then working for
Wooldridge , or also included carpenters engaged in the erection of acoustical ceilings for
the Employer
4 Apparently, Carpenters District Council and Omaha Carpenters District Council are
one and the same and are so treated herein
c Ferenstein testified that while the Employer was not a member of this association,
it generally adopted its contracts
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 2, the Carpenters International sent the Employer a
telegram referring to the "misassigned" work at the telephone company
project and requesting that carpenters be employed for the work of
installing the floor and ceiling tracks, metal studs, and applying the
drywall there, or "complications for which you would be held entirely
responsible" might ensue. On October 2, the carpenters returned to
work and thereafter completed the studwork.6 The Employer's lathers
were reassigned to work on the Employer's other projects; some may
have been reassigned to the acoustical ceiling work at the telephone
company project.
On October 25, when no lathers were working at the telephone com-
pany project, the Lathers picketed that site with a sign stating: "For-
man Brothers in violation of agreement with Lathers Local No. 136.
This dispute with this employer only." The 11 lathers who worked at
the Employer's other projects in Iowa and Omaha did not appear for
work that day. The picketing and the failure to report to work by all
or most of the lathers lasted several days to a week.
According to Ferenstein, at a meeting held shortly after October 25,
Lee and Pritchard, a representative of the Lathers International,
insisted that lathers be reassigned to the studwork at the telephone
company project; but at another meeting held on October 27 either Lee
or Pritchard stated that if the Employer assigned the studwork at the
forthcoming Notre Dame Academy project to lathers, the Lathers
"would not bother" the Employer on the telephone company job. Fer-
enstein agreed to this.7 On October 28 Lee, on behalf of the Lathers,
sent the Employer a telegram stating that the walkoff by lathers was
not authorized by the Lathers, and that members of the Lathers had
been told to return to their jobs "pending determination of matters
before the National Labor Relations Board."
E. Contentions of the parties
While the Carpenters did not file a brief in this proceeding, the Coun-
cil did file one in the Radachi case and the parties herein stipulated to
the incorporation of the Radachi record where relevant. In Radachi,
the Council contended that the dispute did not constitute a valid juris-
dictional dispute cognizable by the Board because the parties had
agreed to submit such disputes for resolution by the National Joint
Board. It argued, moreover, that past Joint Board decisions had
6 Bastemeyer testified that he did not order the carpenters to return to work.
7 Ferenstein testified that at this time no assignment of the work at the Notre Dame
job had yet been made , and it was not yet known that 95 percent of the studwork there
would receive a drywall finish. He further testified that at the time of the hearing
(March 8, 1965 ), the Notre Dame Academy job was underway and that lathers were
erecting the studs there
CARPENTERS DISTRICT COUNCIL, LOCAL 253, ETC. 1289
-awarded the work to carpenters ; that carpenters historically erected
studs in the area and in the industry and were more skilled in the work;
that it was economically unsound for employers in the area to assign
the work to lathers; and that the Lathers' membership was inadequate
to man local jobs whereas the Council 's was not.
The Lathers contend that the dispute is a valid jurisdictional dis-
pute; that there was no agreed -upon method for adjusting the dispute
because both unions were in noncompliance with the Joint Board when
the dispute arose that : ( 1) Decisions and agreements in the industry
had awarded the work to lathers, ( 2) the work was related to tasks
traditionally performed by lathers , ( 3) for reasons of economy, effi-
ciency, skill , and area practice , the work should be assigned to lathers,
and (4 ) the Council is seeking to expand work opportunities for its
members without a substantial basis therefor.
F. Applicability of the statute
The charges allege a violation of Section 8(b) (4) (D) of the Act.
In a 10 (k) proceeding, we need not resolve any conflicts in testimony,
nor are we required to find that the Carpenters and Lathers in fact
engaged in the unlawful conduct alleged. All we need determine in
this proceeding is that there is reasonable cause to believe that the Car-
penters and the Lathers engaged in such conduct. On the basis of the
entire record, we find that there is reasonable cause to believe that vio-
lations have occurred, and that the dispute is properly before the
Board for determination.
G. Merits of the dispute
Section 10 (k) of the Act requires the Board to make an affirmative
award of disputed work after giving due consideration to various rele-
vant factors. The following factors are asserted in support of the
claims of the parties herein.
1. Certification; collective-bargaining contracts
Neither the Lathers nor the Carpenters has been certified by the
Board with respect to any employees involved in the instant proceed-
ing. The Employer has been a member of the Nebraska Master Plas-
terers Association of Omaha, Nebraska, for a number of years, during
which time that association has been under contract with. the Lathers.
The current agreement recognizes the jurisdiction of the Lathers as set
forth in the International constitution. The Board has considered
other Lathers' contracts containing substantially the same language
as contained in the instant Lathers' contract and has held that they
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not specifically assign to lathers work similar to that here in dis-
pute. We likewise find that this contract does not make such an
assignment.8
2. Company practice
The Employer, which has been in business for at least 50 years, was
primarily engaged in lathing and plastering work until 8 years ago.
Since that time, it has also engaged in drywall and acoustical work.
Currently , about 25 percent of the Employer 's work is concerned with
drywall construction.
The Employer at times has done the work of erecting studs and
applying drywall itself, and at other times has subcontracted out one
or both of -these operations . It appears clear that throughout its his-
tory, the Employer has consistently assigned the work of erecting
studs to receive lath and plaster to lathers . The evidence is, however,
not clear with regard to whether the Employer erected and installed
studs which received a drywall finish prior to 1963, and , if so, whether
such work was assigned to lathers, carpenters , or both.
It appears that in 1963 the Employer subcontracted out the work of
erecting studs and applying drywall on two projects to a subcontractor
named Anthony , who used carpenters for the work . When the arrange-
ment between the Employer and Anthony was discontinued, the
Employer continued to use carpenters for the work of erecting studs to
receive drywall throughout 1963 and until the fall of 1964, except on
one project where there was a labor shortage and both lathers and car-
penters were employed. Due to pressure from the Lathers for this
work, the Employer , commencing in the fall of 1964, assigned the work
of erecting studs to receive drywall to lathers.
3. Employer 's assignment ; skills, competency , and training;
efficiency and economy of operation
Although the Employer had both lathers and carpenters on its pay-
roll, as stated above, it originally assigned the work in dispute to the
lathers.
Ferenstein 's testimony with regard to the competency of carpenters
to perform the work in dispute is not consistent . At one point , he tes-
tified that he had difficulty in securing carpenters qualified to erect
studs as the average carpenter was inexperienced in this type of work,
while at another he testified that he was satisfied with the work of the
carpenters as well as that of the lathers and would not express a prefer-
8 Furthermore , as pointed out in Radaclii Co, at footnote 10, where the identical con-
tractual and constitutional provisions were set forth, it is not clear which provisions of
the International constitution, if any, were incorporated into the Employer's contract
subsequent to September 14-17, 1964.
CARPENTERS DISTRICT COUNCIL, LOCAL 253, ETC. 1291
,ence. Campsey, the Employer's carpentry foreman , testified that he
had had to correct the work of the Employer's lathers as they only
erected two studs for an outside corner whereas three were required
for a drywall finish. Ferenstein, however, testified that he had always
found lathers competent in the performance of the-work in dispute;
that the average lather, unlike the average carpenter, was experienced
in the work; and that he had always been able to secure sufficient lath-
ers for his needs.
We find, based on the above, that the Employer's original assignment
of the disputed work at the M-School project to the lathers is consist-
ent with efficiency of operations.
4. Agreements between the unions; area and industry practice
The only agreement relied on by any of the unions is one allegedly
entered into in 1903 between the Carpenters and Lathers Internationals
assigning ironwork to Lathers and woodwork to Carpenters. How-
ever, the Carpenters International never ratified this agreement and
refused, in the past, to abide by it.° Accordingly, we are unable to give
any weight to this factor in determining the assignment of the work
in dispute herein.
With regard to area and industry practice, it appears that tradi-
tionally lathers in the area have done the work in dispute where wet
finish jobs were involved. With the increasing use of drywall finish,
carpenters have laid claim to the work where a drywall finish is
involved. However, the work is precisely the same whether the final
covering is a wet or dry material. While the Council stated in Padaclti
that it was now claiming the erection of all studs regardless of the
final covering, it cited no compelling reason why this Work should be
awarded to carpenters rather than to lathers, Who have traditionally
performed it.
5. Action of the Joint Board
Although Ferenstein requested Lee to submit the subject dispute to
the National Joint Board, there is no evidence that such a submission
was made. Further, at the time the instant dispute arose, both the
Carpenters and the Lathers were in "noncompliance" and the Joint
Board would not have entertained the subject dispute then.10 There
has thus been no determination by, nor submission to, the National
° Radachi Co , supra, at 8
10 As noted in Radachi Co , we have been administratively advised that subsequent to
the hearing herein , the Carpenters and Lathers came into compliance with the National
Joint Board We therefore find no warrant for making an award of work for the entire
Omaha area , as requested by the Lathers, as future disputes , if any , may be referred to,
and settled by, the Joint Board
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joint Board of this dispute. Accordingly, the past decisions of the
Joint Board, which have assigned the work variously to Carpenters
and Lathers, are not determinative.11
Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors in the entire record, we
shall assign the work in dispute to the lathers. According to the
Employer, the average lather in the area is more experienced than the
average carpenter in the performance of the work, and the lathers
have performed it to the satisfaction of the Employer, who assigned
it to them originally. Except for some of its work during the last sev-
eral years which has received a drywall finish, the Employer through-
out its 50-year history has consistently assigned the work of erecting
studs to lathers. We therefore conclude that the Employer's assign-
ment of the work herein to lathers should not be disturbed. We shall,
accordingly, determine the jurisdictional dispute by deciding that
lathers, rather than carpenters, are entitled to the work in dispute. In
making this determination, we are assigning the disputed work to the
employees who are represented by the Lathers but not to that union or
its members. Our present determination is limited to the particular
controversy which gave rise to this proceeding.
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 Dispute.
1. Employees employed as lathers by Forman Bros. at Omaha,
Nebraska, currently represented by Wood, Wire & Metal Lathers
International Union, Local No. 136, AFL-CIO, are entitled to per-
form the work of erecting and installing studs to receive dry wall mate-
rial on interior partitions at the Northwest Bell Telephone Co. project
in Omaha, Nebraska.
2. Carpenters District Council and Carpenters Local Union No. 253
are not and have not been entitled, by means proscribed by Section
8 (b) (4) (D) of the Act, to force or require the Employer to assign
the above work to carpenters.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Carpenters District Council and Carpenters Local Union
No. 253 shall notify the Regional Director for Region 17, in writing,
"Seattle and King Coaanty Carpenters District and Vicinity , et W. (Gordon Brown,
Inc.), 151 NLRB 700
OMAHA CARPENTERS DISTRICT COUNCIL 1293
whether they will or will not refrain from forcing or requiring the
Employer, by means proscribed by Section 8(b) (4) (D), to assign the
work in dispute to carpenters rather than lathers.
Omaha Carpenters District Council and Radachi Co. Case No.
17-CD-67. June 8,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, as amendeed, following a charge filed by Radachi Co.,
herein called the Employer, alleging that the Omaha Carpenters Dis-
trict, herein called Respondent, had violated Section 8(b) (4) (D) of
the Act by engaging in conduct to force or require the Employer to
assign certain disputed work to employees represented by it rather
than to those represented by Wood, Wire & Metal Lathers Interna-
tional Union, Local No. 136, AFL-CIO, herein referred to as the
Lathers. A hearing was held before Hearing Officer Vincent M. Helm
on February 4 to 6, 1965. All parties appeared at the hearing and
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the issues. The rulings of
the Hearing Officer made at the hearing are free from prejudicial error
and are hereby affirmed. Briefs were filed by Respondent and the
Lathers, and have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
Upon the entire record in this proceeding, the Board makes the fol-
lowing findings:
A. The business of the Employer
The parties stipulated that the Employer, a Nebraska corporation,
is engaged in the business of drywall installation and acoustical con-
struction; that it annually performs services valued in excess of $50,-
000 outside the State of Nebraska ; and that it annually purchases
goods, materials, or supplies valued in excess of $50,000 from suppliers
who receive these goods directly from States outside the State of
Nebraska. It appears from the record that in fact the Employer is
primarily in lathing and plastering work, and also erects suspended
ceilings. The parties agree, and we find, that the Employer is engaged
in commerce within the meaning of the Act.
We further find that it will effectuate the purposes of the Act to
assert jurisdiction herein.
152 NLRB No. 128.