Carpenters, Local 112

National Labor Relations Board - Board Decisions

Apr 6, 1973

202 N.L.R.B. 974 (N.L.R.B. 1973)

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters & Joiners of
America, Local 112, AFL-CIO and Summit Valley
Industries , Inc. and Butte Teamsters Union, Local
No. 2, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , Ind. Case 19-CD-212
April 6, 1973
DECISION AND DETERMINATION OF
DISPUTE
outside the State of Montana valued in excess of
$50,000.2 Accordingly, we find that the Employer is
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 ORGANIZATIONS
The parties stipulated,_and we find, that Carpenters
and Teamsters are labor organizations within the
meaning of Section 2(5) of the Act.
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing charges filed by Summit Valley Industries, Inc.,
herein called the Employer , alleging that United
Brotherhood of Carpenters & Joiners of America,
Local 112, AFL-CIO, herein called Carpenters, has
violated Section 8(b)(4)(i ) and (ii)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing the Employer to assign certain work to
employees represented by Carpenters rather than to
employees represented by Butte Teamsters Union,
Local No. 2, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Ind., herein called Teamsters. A
hearing was held before Hearing Officer Robert J.
Janowitz, on November 28 and 29, . 1972, in Butte,
Montana. The Employer, Carpenters , and Teamsters
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. All parties filed posthearing briefs.
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, a Montana corporation whose
principal office is in Butte, Montana, is a manufac-
turer of prefabricated or modular homes. In the
course and conduct of its business in its first year of
operations,' the Employer will'have purchased goods
and materials directly or indirectly from firms
I The Employer commenced operations on June 12, 1972.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the manufacture or
building of . prebuilt or modular homes and other
structures , including work at the intended sites of
said structures necessary to make the structures
habitable , to the extent all such work is. claimed by
Carpenters pursuant to its collective -bargaining
agreement with the Silver Bow Employers ' Associa-
tion and Butte Contractors ' Association , herein
called Silver Bow and BCA , respectively.
B. The Background and Facts of the. Dispute
The Employer manufactures modular homes at its
plant and sells the finished product to realtors or
ultimate users who in turn contract independently
with other firms for. the laying of the foundations on
which the modular homes will be installed at the
jobsite. The user can also arrange to have a garage
built and attached to his house . One of the firms that
specialize in foundation laying and garage building is
Jovick Construction , Inc., herein called Jovick.
Jovick has been so utilized by some of the Employ-
er's customers. Jovick is affiliated with BCA which in
turn has entered into a collective -bargaining agree-
ment with Carpenters , article XXII of which pro-
vides inter alia that , for any given work project, a
certain designated minimum amount of work' has to
be done at the jobsite by workmen represented by
Carpenters if not done at the company -signatory's
shop . At the time of the hearing the Employer's
complement of employees was approximately 4,
although the number has been as high as 20.
In mid-September 1972, the Employer and -Team-
sters entered into a collective -bargaining agreement,
effective June 12, 1972, which provided that employ-
ees represented by Teamsters would perform all in-
plant manufacture and assembly work and all related
on-site preparation.
On or about October 3, 1972, Leo Calcaterra, an
each of seven houses already built and would also go into each of seven
2 This figure is based on calculations made by the Employer that more houses ordered and slated for completion by May 1, 1973.
$5,801.75 worth of such goods and materials had gone into the building of
202 NLRB No. 153
CARPENTERS , 'LOCAL 112 975
employee of Jovick and a member of Carpenters, was
putting the shingles on the roof of a garage attached
to a modular home built by the Employer and
already delivered on site. Upon hearing of this,
James Cadigan, business representative of Carpen-
ters, came on the scene and ordered Calcaterra off
the job, advising him that the house he was working
on was "unfair. Calcaterra complied with the
request and notified Frank Jovick, coowner of Jovick
Construction, Inc.,3 as to what happened. The next
day, Jovick met Cadigan and asked why his man was
pulled off the job. Cadigan told him that his work of
putting the garage on the Employer's prefabricated
modular home violated the BCA-Carpenters con-
tract. Pursuant to advice from his -attorney, Frank
Jovick completed work on the garage himself, all of
Jovick's employees having abided by Cadigan's order
to refuse to work on modular homes.
Faced with an inability of Jovick to complete his
on-site work, the Employer's customers, on two
occasions, requested that the Employer complete the
work itself, which it did. After the Employer started
assigning its own men, represented by Teamsters, to
finish the necessary on-site work, Carpenters began
picketing the, Employer's plant. On October 11, the
picketing began, manifested by the carrying of a
picket sign by one person, the fastening of the picket.
sign to the fender of a car parked near the entrance
to the Employer's plant, or the leaning of the sign
against a nearby telephone pole. The picket sign read
"NOTICE TO PUBLIC, This Employer did not
employ members of Carpenter's Union in the work
to be performed., on this building-Local 112,
Carpenters Union AFL-CIO," "this building" refer-
ring to a model prefabricated home situated on the
premises near the sign. The picketing continued on
October 12, 13,.18, 19, and 24 and November 7, 1972.
The Employer sought, and on November 8 obtained,
a temporary restraining order pursuant to Section
10(1) of the Act from the United States District Court
for the District of Montana. Since that time, Jovick's
employees have returned to work preparing the
homesites for the Employer's houses; and picketing
has ceased.
C. Contentions of the Parties
The Employer and Teamsters defend the present
assignment of the work in dispute .to the Teamsters,
citing their collective -bargaining agreement which
clearly provides for such assignment .4 Teamsters is
-willing to relinquish its claim to all the necessary on-
site preparation and installation-work to Carpenters
or any other craft union willing to do such work.
Only if such union is unwilling or unable to do the
on-site work will Teamsters, assert its jurisdiction and
go onto the site and complete the'work.
The Employer further argues that Carpenters
unlawfully pressured it to assign the disputed work to
Carpenters rather than to Teamsters, thus violating
Section 8(b)(4)(D) of the Act. This pressure was
manifested in two- ways. By ordering Jovick's
employees to- refrain from building foundations or
attaching garages at the site of installation, Carpen-
ters was indirectly trying to force the Employer to
transfer a great deal of its in-plant fabrication work,
done by Teamsters, to Carpenters, who would then
do such work at the site. The Employer cites the
testimony of Frank Jovick that Cadigan told him
that many modular home factories had "gone broke"
and -Vowed that they (Carpenters) would "break
them," "them" presumably referring to plants such
as the Employer's, unless men represented by
Carpenters did the disputed work. Jovick also
testified that Cadigan told him ' that the breach of
article XXII of their collective-bargaining agreement
would be cured, and Jovick's employees permitted to
return to work, if the Employer signed article XXII
himself. Finally, the Employer cites a statement. by
Cadigan, attributed to him by Jovick, that his men
would go back to work if the owner of the modular
home signed article XXII.
The Employer also argues that direct pressure was
placed on it to reassign the" disputed work to
Carpenters. Such pressure took the form of the
picketing of its plant during late October and early
November 1972, after the Employer had directed its
own employees to complete the on- site preparation
work Jovick was precluded from doing. The Employ-
er also cites Cadigan's testimony to the effect that, if
the Employer persisted in having its own employees
do the on-site work in place of Jovick, Carpenters
would notify the public through picketing or hand-
billing that the work was not being performed by
Carpenters.
Carpenters contends that there is no reasonable
cause to believe that Section 8(b)(4)(D) -has been
violated. It does not claim the in-plant work
performed by the Employer's employees. The only
dispute Carpenters has is with Jovick, which, as an
affiliate of BCA, was bound by article XXII of the
Carpenters-BCA agreement guaranteeing employees
3 The corporation is owned and operated by Frank Jovick and his wife. the final destination and preparation of the site, so as to preserve and
q Art. 1(B) of the agreement provides that: protect the integrity of the products manufactured by the bargaining
The Employer recognizes the jurisdiction of the Union over all unit.
manufacture and assembly work, including following the product to
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Jovick a certain minimum amount of work at each
construction site.5 The validity of this article has
been upheld by the Board.6 By merely digging the
foundation for, and/or attaching garages to, the
Employer's prefabricated houses, Jovick was per-
forming less than minimum work article XXII,
section 3A, called for and hence was in violation of
its contract with Carpenters. Any pressure exerted
against Jovick, regardless of its incidental impact on
the Employer, was for the sole purpose of urging
Jovick to comply with the terms of that agreement,
i.e., assign Carpenters the work set forth in article
XXII, section 3A, even if it meant tearing down some
of the prefabricated work and doing it again. No
pressure was purposely directed at the Employer to
change his work assignment.?
As for the picketing of the Employer, Carpenters
contends it was of a purely informational nature,
without any indication of threats, coercion, or
interference., It took place on seemingly public land
and the picket signs were truthful. Thus, such
informational picketing, argues Carpenters,
protected activity.
was
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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.
Viewing the total circumstances of this case, we find
that Carpenters conduct went beyond merely at-
tempting to enforce article XXII, section 3A, against
Jovick. By pulling Jovick's employees off the jobsite
and threatening to picket the Employer's workmen if
they followed their work to the jobsite and completed
the work thereon, Carpenters for all intents and
purposes was preventing the Employer from deliver-
ing its product to its customers in salable condition.
Only if the. Employer drastically curtailed its in-plant
operations and delivered the components of each
modular house to the jobsite so that Carpenters
would then do the work guaranteed by article XXII,
section 3A, in other words reassign its plant work
s Sec. 3A of art. XXII reads in relevant part as follows:
All of the following work shall be performed at the site of
construction, alteration, or repairing of the building structure or other
work and shall not be subcontracted off thejob site, unless said work is
done at the Employer's shop.
(I) All the erection of the forms for basements and/or footings for the
structures. Nothing herein shall be construed to apply to prebuilt forms
which have, through past practice, been utilized by the Employers.
(2) The installation of all exterior siding or finishing, or, in the
alternative, all wallboards and/or paneling.
(3) The installation of exterior trim on the structure, or, in the
alternative , all interior trim on the structure.
(4) The installation of all interior doors on the structure.
(5) The shingling of all roofs, whether wood, metal or composition
material.
(6) Installation of all cabinets and shelving.
from Teamsters to Carpenters, would the Carpenters
remove pressure from the Employer and its subcon-
tractor Jovick.
Corroborative of Carpenters unlawful objective is
the evidence of a more direct pressure placed on the
Employer by Carpenters. The record clearly shows
that Carpenters picketed the Employer's plant for the
express purpose of effecting a reassignment of the
prefabrication of the modular houses from workmen
represented by Teamsters to workmen represented
by Carpenters, either on the jobsite or in the plant.
Cadigan in fact admitted that the picketing would
have ceased had the in-plant work been given to
members of Carpenters. Furthermore, Cadigan
testified that additional picketing and handbilling
would take place if Teamsters insisted on following
the work to the jobsite. From these circumstances,
we find there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred, and that
the dispute is properly before the Board for determi-
nation.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors.
1. Certification and collective-bargaining
agreements
The collective-bargaining agreement in effect
between the Employer and Teamsters clearly pro-
vides for an assignment of the work in question to
employees represented by Teamsters. There is no
collective-bargaining agreement in effect between the
Employer and Carpenters. We thus concluded that.
the Employer's contract clearly favors assignment of
the work in dispute to employees represented by
Teamsters.
2. Employer and area practice
The ' Employer has not been in business long
(7) The cutting and installation of all wooden stairs and /or bannisters.
(8) The installation of all form work for steps and /or stoops... .
(9) The placing and fastening of all components of the structure upon
the foundation.
6 United Brotherhood of Carpenters and Joiners of America, Local 112,
AFL-C/O and Silver Bow Employers' Association and Butte Contractors'
Association, 200 NLRB No. 42. In this ' case , it was alleged that art. XXII
amounted to a "hot cargo" clause violative of Sec. 8(e) of the Act , and that
the striking and other coercive activities , engaged in by Carpenters to secure
such a clause in its contract with the two Contractor Associations , violated
Sec. 8(b)(4)(A). The Board however found such activity to be of a lawful
primary nature , and art . XXII to be a lawful work preservation provision.
I Cadigan specifically denied vowing to "break" the Employer or
manufacturers like the Employer . Cadigan also denied telling Jovick that his
employees would return to work if Employer signed art. XXII.
CARPENTERS, LOCAL 112 977
enough to establish an "Employer practice." The
record reveals, however, that employees represented
by other Teamsters locals have performed prefabri-
cation work at five or six modular home manufactur-
ing plants throughout the country. There is one other
modular builder in Montana, which has a contract
with another Teamsters local. There is also evidence
that two modular home builders, both outside
Montana, have collective-bargaining agreements
with the International Brotherhood of Carpenters.
The weight of.evidence as to area practice favors the
Employer's present assignment.
3. Skills, efficiency, and economy of
operation
Neither union makes the claim that its members
possess superior skills to perform the disputed work.
In fact, as the bulk of the workers newly hired by
Employer were inexperienced in modular home
fabrication, and as only 1 to 3 weeks on-the-job
training is deemed necessary by the Employer, it
appears that the work in dispute does not call for any
skills peculiar to either Carpenters or Teamsters.
With respect to efficiency and economy of opera-
tions, neither union has introduced evidence tending
to favor an assignment to its respective members.
In view of the foregoing, we find that the factors of
skill, efficiency, and economy of operation favor
neither the Employer's assignment nor an assignment
of the disputed work to workmen represented by
Carpenters.
4. Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by Teamsters are entitled to perform the work
in dispute. This assignment is consistent with
collective-bargaining agreements and area practice.
In making this determination, we are awarding the
work in question to employees represented by
Teamsters, but not to that Union or its members.
The 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
makes the following Determination of Dispute:
1. Employees of the Employer who are currently
represented by the Butte Teamsters Union, Local
No.,-2, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind., are entitled to the work of
manufacturing or building of prebuilt or modular
homes and other structures, including work necessary
to make' the structures habitable, to the extent all
such work is claimed by United Brotherhood of
Carpenters and Joiners of America, Local 112,
AFL-CIO, pursuant to its collective-bargaining
agreement with the Silver Bow Employers' Associa-
tion and Butte Contractors' Association.
.2. United Brotherhood of Carpenters and Joiners
of America, Local 112, AFL-CIO, is not 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 its members or employees whom. it repre-
sents.
3. Within 10 days from the date of the Decision
and Determination of Dispute, the labor organiza-
tion listed in the preceding paragraph shall notify the
Regional Director for Region 19, in writing, whether
or not it will refrain from forcing or requiring
Summit Valley Industries, Inc., by means proscribed
by Section 8(b)(4)(D) of the Act, to assign the work
awarded above in a manner inconsistent with the
above determination.