Carpenters Union Local 701

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 348 (N.L.R.B. 1970)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Union Local 701, United Brotherhood of
Carpenters & Joiners of America , AFL-CIO;
Sequoia District Council of Carpenters , United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO' and Pierce Lathing Company2 and
Wood, Wire and Metal Lathers International
Union , Local 83, AFL-CIO .3 Case 20-CD-292
June 30, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed on February 5, 1970," by the Em-
ployer, alleging that the Carpenters violated Sec-
tion 8(b)(4)(D) of the Act by engaging in picketing
with an object of forcing or requiring the Employer
to assign certain work to employees represented by
the Carpenters, rather than to employees
represented by the Lathers.
Pursuant to a notice, a hearing was held before
Hearing Officer Morton H. Orenstein on April 9
and 10. Contrary to the contention of the Carpen-
ters, all parties appearing were afforded full oppor-
tunity to be heard, to examine and cross-examine
witnesses , and to adduce evidence bearing on the
issues . The rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Briefs were filed by the Carpenters, the Lathers,
and the Employer and 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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Pierce Lathing Company is a California corpora-
tion with its main office located in Fresno, Califor-
nia. It is engaged in lathing, plastering, and drywall
finishing in the building and construction industry
in California and other States. During the last
calendar year, the Employer's volume of business
was approximately $6 million and its purchases of
Herein called Carpenters.
' Herein called Employer
goods and materials from outside the State of
California were in excess of $50,000.
We find that the Employer is engaged in com-
merce 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 INVOLVED
We find that the Carpenters and the Lathers are
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The Facts
The Employer in late 1969 or early 1970 was
awarded subcontracts for the following work in
connection with the construction of the Weinstock
department store in Fresno, California: Installation
of a suspended ceiling system and erection of studs
to be used for a plaster or drywall finish.
On January 5, 1970, the Employer commenced
work at the construction site and assigned the
foregoing tasks to its employees who were members
of the Lathers. On January 15, the general contrac-
tor, Johnson & Mapes Construction Company,
called a meeting attended by Jack Devlin and Mel
Ward for the contractor, Kenneth L. Matson for
the Employer, Larry Null for the Carpenters, and
Robert Dunbar for the Lathers. Null contended
that the work on the metal stud drywall framing
should be assigned to carpenters. When Matson
stated that the work had been assigned to lathers,
Null replied, "I hope you'll find something to hang
[the studs] from."
On February 3, Null and another representative
of the Carpenters picketed the jobsite with signs
reading, "Pierce Lathing Company Violates
Drywall Contract." A work stoppage ensued from 8
a.m. to about 10:15 a.m., at which time the picket-
ing was discontinued upon the Employer's promise
to discuss the matter with the Carpenters on
February 5. At that meeting, the Carpenters
renewed its claim and asked the Employer to sign a
drywall agreement so that employees represented
by the Carpenters could be hired to do the disputed
work. The Employer thereupon refused to comply
with these requests.
Toward the close of the hearing on April 10, the
Carpenters announced that on that day a copy of a
settlement agreement, which had been proposed by
' Herein called Lathers
Unless otherwise specified , all dates below are for 1970
184 NLRB -No. 37
CARPENTERS UNION LOCAL 701 349
the Regional Director prior to the hearing, was,
after being altered in one respect by the Carpen-
ters,5 signed by representatives of the Carpenters
and sent to the Regional Director. The Employer
and the Lathers then stated that they had not
reached any agreement or adjustment with the Car-
penters concerning the disputed work.
B. Contentions of the Parties
The Lathers and the Employer contend that the
assignment of the disputed work to lathers was war-
ranted by their collective-bargaining agreement,
company and area practice, the special skills of the
lathers, and the efficiency resulting from the em-
ployment of only lathers.
The Carpenters refers to its statement on April
10 that a hearing was unnecessary because the
dispute had been resolved by the settlement agree-
ment. The Carpenters now requests the Board to
approve the said settlement agreement. Alternative-
ly, the Carpenters, which argues that the record is
incomplete, asks that the hearing be reopened to
allow witnesses to testify as to "the status quo
agreement between the two International Unions,
which has a central bearing on this case." However,
if the Board concludes that the lathers are entitled
to the disputed work, the Carpenters wishes the
Board to restrict its determination to the "in-
dividual job and the individual contractor" involved
herein.
giving due consideration to various relevant factors.
The following are the factors relied on by the
parties to the dispute in support of their respective
claims:
1. Collective-bargaining contracts
The Employer is a party to a collective-bargain-
ing agreement between the Lathers and the Master
Plasterers & Lathers Association of Fresno, Tulare,
Kings, and Madera Counties. The agreement
covers, inter alia, the installation and erection of
light iron construction and metal studs which are to
receive a drywall finish.
The Employer has no current agreement with the
Carpenters and has never employed carpenters to
do work similar to that which is in dispute. How-
ever, the Employer from 1965 to July 31, 1968,
was party to a drywall contract with the Carpenters
under which it employed during that period two
carpenters for the limited purpose of setting door
frames.
2. Company, area , and industry practice
The Employer has always used lathers exclusively
for installation of ceiling systems and erection of
metal studs. The record also shows that in the
counties of Fresno, Kings, Tulare, and Madera
about 85 to 90 percent of the work is performed by
lathers.
C. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is a reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated. The record shows that on
February 3 the Carpenters picketed the jobsite
because the disputed work had not been assigned to
carpenters. The record also shows that a work stop-
page took place at that time at the jobsite. Ac-
cordingly, we find that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) of
the Act has occurred and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
D. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
3. Employee skills and efficiency of operation
The lathers employed by the Employer are spe-
cially trained and are more skilled than carpenters
in working with metal and using metal cutting tools.
As lathers also perform tasks other than those in
question , assignment of the disputed work to car-
penters would be inefficient and uneconomical
because it would necessitate the replacement of
one steady crew of lathers by separate crews of
lathers and carpenters with intermittent and insuffi-
cient work for each.
4. Union decisions and agreements
The Lathers cites the following in support of its
claim: An agreement of January 14, 1903, between
its International and that of the Carpenters provides
that the Carpenters will not assert jurisdiction over
iron "studding," and the Lathers will not assert ju-
risdiction over wood work. A panel headed by John
5 The change restricted the Lathers obligation to refrain from proscribed
activity to individuals employed by the general contractor and the Em-
ployer.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T. Dunlop on January 15, 1968, awarded to the
Lathers work involving ceiling systems.
The Carpenters offered no precedent at the hear-
ing in support of its claim . However , as indicated
above, the Carpenters in its brief requests the
Board to reopen the hearing to allow it to present
evidence on the status quo agreement between the
Internationals of the Carpenters and the Lathers.
Assuming, without finding, that the said agreement
favors the claim of the Carpenters," we conclude
that the foregoing evidence offered by the Lathers
and Carpenters furnishes no controlling basis for
resolving the conflicting claims in the instant case.7
CONCLUSIONS AT TO THE MERITS OF THE DISPUTE"
Upon consideration of all the pertinent factors in
this case, we shall assign the disputed work to the
lathers. In so doing, we give weight to the Em-
ployer's as well as area practice, the Employer's
collective-bargaining agreement with the Lathers,
the special skills of the lathers, and the efficiency
and economy resulting from the Employer's exclu-
sive use of the lathers. We therefore conclude that
the Employer's assignment to the lathers should not
be disturbed."
In making this determination, we are assigning
the disputed work to the employees of the Em-
ployer who are represented by the Lathers but not
to that Union or its members. In the absence of
evidence that the Carpenters made demands for
this type of work assignment on jobsites other than
the one involved herein, our present determination
is limited to the particular dispute which gave rise
to this proceeding.
See Carpenters District Counsel of Denver & Vicinity , AFL-CIO, (J. O.
Veteto & Son), 146 NLRB 1242.
r Accordingly , we deny the request to reopen the hearing.
8 As the Carpenters did not indicate a willingness to enter a settlement
agreement , which it modified , until the close of the hearing and the Em-
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the foregoing
findings and the entire record in this proceeding,
the National Labor Relations Board makes the fol-
lowing Determination of Dispute:
1. Lathers employed by Pierce Lathing Com-
pany , who are currently represented by Wood,
Wire and Metal Lathers International Union, Local
83, AFL-CIO, are entitled to perform the disputed
work of installation of suspended ceiling systems
and erection of metal studs to be used for a drywall
finish in the construction of the Weinstock depart-
ment store in Fresno , California.
2. Carpenters Union Local 701, United Brother-
hood of Carpenters & Joiners of America,
AFL-CIO, and Sequoia District Council of Carpen-
ters, United Brotherhood of Carpenters & Joiners
of America , AFL-CIO, are 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 carpenters.
3. Within 10 days from the date of this Decision
and Determination of Dispute , the Unions named in
paragraph 2, above, shall notify the Regional
Director for Region 20, in writing , whether or not
they will refrain from forcing or requiring the Em-
ployer , by means proscribed by Section
8(b)(4)(D ), to assign the work in dispute to their
members rather than those represented by Wood,
Wire and Metal Lathers International Union, Local
83, AFL-CIO.
ployer and the Lathers refused to be parties thereto on the ground that it
did not provide for an adjustment respecting the disputed work, it remains
our obligation to determine the dispute
See Seattle and King County Carpenters District and Vicinity (Gordon
Brown , Inc.), 151 NLRB 700