Carpenters Local No. 480

National Labor Relations Board - Board DecisionsJun 25, 1973

204 N.L.R.B. 444 (N.L.R.B. 1973)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Local No. 480 , affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Chevy Chase Project 9 and Sheet Metal Workers Local 268, affiliated with Sheet Met- al Workers International Association , AFL-CIO. Case 14-CD-435 June 25, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Chevy Chase Project 9, herein called Employer, alleging that Carpenters Local No. 480, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Carpen- ters , has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer John S. Ste- vens on December 14, 1972. The Employer, Carpen- ters , and Sheet Metal Workers, Local No. 268, affiliated with Sheet Metal Workers International As- sociation , herein called Sheet Metal Workers, ap- peared at the hearing and were afforded full opportunity to be heard , to examine and cross-exam- ine witnesses , and to adduce evidence bearing on the issues .' Thereafter, briefs were filed by the Employer and the Carpenters which have been duly considered. 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- ' At the beginning of the hearing, counsel for the Sheet Metal Workers made an oral motion to quash the notice of hearing based upon the asserted position that the Sheet Metal Workers are employed by France Plumbing, Heating and Air Conditioning Company, herein called France, and are not employed by Chevy Chase Project 9, and therefore the Board would not have jurisdiction to determine a work assignment as to France France was not served the original charge , notice of heanng and order rescheduling hearing However, on November 2, 1972, the charge , notice of hearing and order rescheduling hearing were served on France by registered mail At the con- clusion of the heanng counsel for the Sheet Metal Workers renewed his motion to quash the notice of hearing, based upon his contention that Chevy Chase Project 9 now having subcontracted the work to France , a decision by the Board could cause cancellation of the contract Further, France is not a party to this proceeding and since the party who now has the work is not before the Board , the entire hearing was wasteful . We find no merit in this contention . France was duly served in advance of the hearing with, and acknowledged receipt of, a notice of hearing, and a copy of the charge, but it neither appeared at the hearing nor filed a brief with the Board . We find that where , as here , all parties to the dispute were served with notice of hearing and afforded opportunity to participate and introduce evidence, the purposes intended in the hearings under Section 10(k) are adequatedly served . See Hoisting and Portable Engineers Local 450, District No. I of the International Union of Operating Engineers (Filter Media Inc ),171 NLRB 827, In. 1, Teamsters Local Union 5 (Hart-McCowan Foundation, Co, Inc), 147 NLRB 1216, 1219 Accordingly , we shall proceed to make a determination on the basis of the evidence on the record before us thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER We find that the Employer is a partnership in which a major party is Chevy Chase Investments, a real estate development company. Chevy Chase during the past year purchased building materials, doors, and lumber, valued in excess of $70,000 from a supplier in Missouri, which materials were shipped to Chevy Chase in the State of Illinois. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 11 THE LABOR ORGANIZATION INVOLVED We find that the Carpenters and the Sheet Metal Workers are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts In April 1972, work began on a project in O'Fallon, Illinois, consisting of 13 four-family buildings. The owner and developer of the complex and the Employ- er in this case is the Chevy Chase Project 9, which is a limited partnership formed specifically to develop and construct multifamily housing under the Federal Housing Authority's Plan 236. Chevy Chase Invest- ments, a corporation, is the managing partner of Chevy Chase Project 9. Mr. John Havelka, a general partner in the partnership and president of Chevy Chase Investments, filed the instant charge. The "soffit system" which is the outside finish for the roof overhang on a building is composed of an overhang drip edge, a fascia cover, frieze runner strip, and a soffit panel. The overhang drip edge is nailed to the edge of the roof on the plywood sheeting, the fascia is nailed to a board attached to the ends of the roof rafters, the frieze starter strip, which is a metal strip with a channel, is nailed against the wall of the building, and the soffit panel is placed in the frieze runner channel and then nailed to the outer edge of the roof. The particular soffit system used here is constructed of aluminum. However, this identical sof- fit system can and has been constructed using wood, plastic, plywood, dry wall, fibreboard, celotex, ma- 204 NLRB No. 62 CARPENTERS LOCAL NO. 480 445 sonite , gypsum board, or vinyl. Regardless of the ma- terial utilized, the system performs the exact same function, the only difference being the future mainte- nance that will be required. When the construction began in April 1972, the Employer entered into various subcontract arrange- ments , including a carpenter subcontract to Blazier and another subcontract with France for heating, air- conditioning, and guttering work. Robert Blazier, in addition to being the carpenter subcontractor, was the construction superintendent for the entire Chevy Chase Project 9. John Havelka, the general partner, stated that he was aware that Blazier had a collective- bargaining agreement with the Carpenters and em- ployed carpenters and that at the time he awarded Blazier the contract he was aware of this and desired to have the carpenters perform the work in dispute. From the beginning of this project in April 1972 until August 1972, the Carpenters were performing all of the work in dispute. In August 1972, the Sheet Metal Workers learned Blazier was using carpenters to perform the disputed work. The representatives of the Sheet Metal Workers went to the worksite and spoke to Robert T. Blazier. A demand was made of Blazier to reassign the disput- ed work to the Sheet Metal Workers. The Sheet Metal Workers representatives stated that they asked Blazier if he would be bound by a National Joint Board deci- sion if one could be obtained awarding the work to the Sheet Metal Workers and he stated that he did agree to be bound. Representatives of the Sheet Metal Workers then went to John T. Havelka, president, and also made a demand for reassignment of the work upon him. They stated that they asked Havelka if he would be bound by a National Joint Board decision and they said he replied that he would be so bound. Havelka specifically denied having agreed to be bound by a National Joint Board decision. About August 21, or 22, the Sheet Metal Workers procured an assignment of the work from the Nation- al Joint Board. They went to Blazier about August 24 and asked him to place the award in effect. Blazier failed to do so. On August 28, the Sheet Metal Work- ers commenced picketing Chevy Chase's project with signs stating that the Carpenters were refusing to give effect to a National Joint Board decision. All crafts on the project except the carpenters ceased work. Later that same day, Chevy Chase removed the disputed work from the contract of Blazier and assigned it to subcontractor France, whose employees are repre- sented by the Sheet Metal Workers. The carpenters then walked off the job and remained away for ap- proximately 10 days. Carpenters admits that the work stoppage was a result of their loss of the disputed work. B. The Work in Dispute Before the shingles are applied to the roof, a metal strip called a starter is nailed to the roof. Construction of the roof other than the starter strip is admittedly carpenter's work. Sheet Metal Workers claim the right to place the starter strip. On the overhang of the roof, the underside of the overhang is closed by means of a soffit. At this project, the soffit is placed between two metal channels. The work of applying the chan- nels and the aluminum soffit is in dispute. C. Contentions of the Parties The Employer specifically denied having agreed to be bound by a National Joint Board decision and contends that the assignment of the work in dispute to carpenters is more efficient , as it is a part of one continuous operation , that carpenters possess the skill necessary to do the work , and it is more economical to have one craft perform all of the work. The Carpenters position is the same as that of the Employer , and it also contends that the parties are not bound by the determination of the dispute by the Joint Board because it is in noncompliance status with the Joint Board. The Sheet Metal Workers contends that the Joint Board decision awarding the work to members of the Sheet Metal Workers constituted settlement of the dispute by an agreed -upon method , inasmuch as both International Unions are bound by the Joint Board procedures , France agreed to be bound and represen- tatives of Chevy Chase and Blazier orally agreed to be bound. 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 (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated and (2) the parties have not agreed upon a meth- od for the voluntary adjustment of the dispute. In this case , it is clear that the Sheet Metal Workers made a demand on Blazier and also on Havelka, Pres- ident of Chevy Chase Investments, Inc., to reassign the disputed work to them . The Sheet Metal Workers did picket and cause a work stoppage of all crafts on the project , except the carpenters , at the Employer's jobsite with the object of requiring the Employer to assign all the disputed work to its members. Chevy Chase removed the disputed work from the contract of Blazier and assigned it to the subcontractor , France Plumbing, whose employees are represented by the Sheet Metal Workers. The carpenters then walked off 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the job. On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. Further, we conclude that there exists no effective method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. The testimony of the parties is conflicting as to whether an oral agree- ment was reached, and a letter from the Sheet Metal Workers to the Employer sent subsequent-to the time of the alleged oral agreement failed to mention any such agreement although the ostensible purpose of the letter was to confirm it. Furthermore, the Sheet Metal Workers could offer no reason for the omission of any reference to the purported oral agreement other than mention of it was deemed unnecessary. In such cir- cumstances, we find the evidence insufficient to es- tablish that the Employer is bound by the Joint Board procedures. Cf. Sheet Metal Workers International As- sociation, Local No. 553 (Ray Proof Corporation), 198 NLRB No. 36. E. 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 factors.2 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors in- volved in a particular case.' The following factors are relevant in making the 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 representa- tive for a unit of the Employer's employees. When the construction began in April 1972, Chevy Chase Project 9 entered into various subcontract ar- rangements, including a carpenter subcontract to Bla- zier and another subcontract with France for heating, air-conditioning, and guttering work. As noted, Rob- ert Blazier, in addition to being the carpenter subcon- tractor, was the construction superintendent for the entire project for Chevy Chase Project 9. All of the work in dispute was included in Blazier's carpenter 2 N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U S 573 (1961) 3 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 subcontract. None of the work in dispute was includ- ed in the subcontract with France. Chevy Chase, for reasons unrelated to the instant dispute or the ability of the carpenters, took over the work heretofore per- formed by Blazier and decided to employ carpenters directly. It has signed a collective-bargaining agree- ment with the Carpenters Union. The contract with the Carpenters provides that the carpenters are to perform " . . . milling, fashioning, joining, assem- bling, erecting, fastening or dismantling of all materi- als of wood, plaster, metal, fiber cork and composition, and all substituting materials," together with "the handling, erecting, installing and disman- tling of . . . all materials" used by members of the Carpenters. Chevy Chase has no collective-bargaining relationship of any sort with the Sheet Metal Workers. We therefore find that the contract with the Carpen- ters favors award of the work to the Employer's em- ployees represented by the Carpenters. 2. Employer and area practice Chevy Chase Investments has been the owner and developer of eight apartment projects prior to the in- stant Chevy Chase Project 9. The earlier eight projects are located in St. Louis County, Missouri, and in Madison and Macoupin Counties, Illinois, all within a 40-to 70-mile radius of the present job. Each of the projects had the same type of soffit system installation as the present job and on all, the work was performed by Carpenters. John Havelka stated that in his 25 years' experience in the construction industry, from his observation, the performance of the work in dis- pute here has always been performed by carpenters and never by sheet metal workers. In addition, the record discloses that numerous jobs in the area, exact- ly like the instant ones at Chevy Chase Project, utilize carpenters to perform this work. The Employer and area practice, therefore, favor the award of the disput- ed work to the Employer's employees represented by the Carpenters. 3. Skills, efficiency, and economy of operation It appears from the record that either craft is capa- ble of performing the work in dispute and each has available to it the tools necessary to do the job, so that the factor of skill is not useful in making our determi- nation herein. Regarding efficiency, the record shows that the sheet metal workers took 50 percent longer to perform the disputed work than did the carpenters. Havelka stated that there is time lost because the sheet metal workers must come from another part of the project to perform the disputed work and the carpen- ters must leave to go to another part of the project. CARPENTERS LOCAL NO. 480 447 Thus, the use of carpenters would be more efficient and more economical. We therefore find that the effi- ciency and economy factors favor an award to the Employer's employees represented by the Carpenters. CONCLUSIONS Having considered all pertinent factors present herein, we conclude that Employer's employees who are represented by the Carpenters are entitled to per- form the work in dispute. This assignment is consis- tent with the initial assignment, the contracts, the Employer and area practice, and the efficiency and economy of the operation. In making this determina- tion, we are awarding the work in question to employ- ees employed by the Employer who are represented by the Carpenters, but not to that Union or its mem- bers. SCOPE OF THE DETERMINATION The work which gave rise to the instant dispute is nearing completion and an additional Chevy Chase Project (No. 10) is currently under construction with the identical type of soffit systems and Chevy Chase contemplates future projects where this identical work will be involved. We find persuasive the Carpenters suggestion that our award in this case should be appli- cable to all similar future disputes which may arise with respect to Chevy Chase Projects in the same area. The record does not disclose the location of the other Chevy Chase Project (No. 10), nor does it disclose the location of future projects which the Employer has stated on the record it intends to develop. We shall, however, make our award in this case applicable to the area covered by the jurisdiction of the collective- bargaining agreement between the Employer and the Tri-Counties District Council and Affiliated Coun- ties.4 This award will, of course, apply to such future Hearing Officer's Exh. I disputes only if no substantial changes occur in the factors, discussed above, which have led us to our conclusion that the disputed work should be per- formed by carpenters employed by the Employer and represented by the Carpenters. 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 case, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Assuming the substantial continuation of the factors discussed in the above decision, carpenters employed by the Employer rather than sheet metal workers represented by Sheet Metal Workers Local 268, affiliated with Sheet Metal Workers Internation- al Association, AFL-CIO, are entitled to perform the work of handling and installing of frieze starter strips, aluminum soffit, fascia, and metal roof start flashing and other metal flashings at the Chevy Chase Housing Projects in the area covered by the jurisdiction of the collective-bargaining agreement between the Employ- er and the Tri-Counties District Council and Affiliat- ed Counties. 2. Sheet Metal Workers Local No. 268, affiliated with Sheet Metal Workers International Association, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Chevy Chase Project 9, O'Fallon, Illinois, to assign such work to individuals represented by the aforesaid labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers Local No. 268, affiliated with Sheet Metal Workers International Association, AFL-CIO, shall notify the Regional Director for Region 14, in writing, whether or not it will refrain from forcing or requiring Chevy Chase Project 9, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination.