Cuyahoga, Lake, Etc., Counties District Council

National Labor Relations Board - Board Decisions

Apr 22, 1963

142 N.L.R.B. 163 (N.L.R.B. 1963)

CUYAHOGA, LAKE, ETC., COUNTIES DISTRICT COUNCIL 163
Cuyahoga , Lake , Geauga and Ashtabula Counties District Coun-
cil and Locals 11, 182, 105, 404 , United Brotherhood of Car-
penters and Joiners of America, AFL-CIO and The Berti
Company and Cuyahoga , Lake, Geauga and Ashtabula Counties
District Council and Locals 11, 182, 105, 404, United Brother-
hood of Carpenters and Joiners of- America , AFL-CIO and
Richard Small, John E. Ferguson , Carl Butkovic , John Robert-
son, Albert Kobe, and Albert Marotta. Cases Nos. 8-CD-30
and 8-CD-31. April 22, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the Act following
separate amended charges filed in Case No. 8-CD-30 by The Berti
Company, herein called Berti, and in Case No. 8-CD-31 by Richard
Small, John E. Ferguson, Carl Butkovic, John Robertson, Albert
Kobe, and Albert Marotta, as individuals, alleging that Cuyahoga,
Lake, Geauga and Ashtabula Counties District Council and Locals
11, 182, 105, 404, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called the Respondents or the Carpenters,
had induced and encouraged employees to strike for the purpose of
forcing or requiring Berti to assign particular work to members of
the Respondents rather than to members of Local No. 2, Wood, Wire
and Metal Lathers International Union, AFL-CIO, herein called
Local 2.1 Pursuant to an order consolidating cases and notice of
hearing, a hearing was held before Charles Slaughter, hearing officer
on October 17, 18, and 19, 1962, and before Allen R. DeLong, hearing
officer, on December 10 through 14, 1962. All parties 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 officers made at the hearings are
free from prejudicial error and are hereby affirmed. The Respondents
and Local 2 filed briefs herein which have been duly considered.
. Upon the entire record in this case, the Board makes the following
findings : 2
1. The. business of the Employer
Berti, a Michigan corporation with its principal office located in
Detroit, is engaged as a lathing and plastering contractor in the
building and construction, industry. Berti has a $1,100,000 contract
1 Case No. 8-CD-31 also alleged that the Respondents by certain acts violated Section
8(b) (1) (A) of the Act. We make no decision on this issue as it is not within the purview
of a Section 10(k) proceeding.
2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman McCulloch and
Members Leedom and Brown]. -
142 NLRB No. 22.
712-548-64-vol. 142-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Malan Construction Company, herein called Malan,3 for plaster-
ing, lathing, and accoustical tile installation at the United States
Veterans Hospital, Wade Park, Cleveland, Ohio, herein called the
Wade Park Hospital. Malan has a prime contract with the United
States Veterans' Administration for construction of the Wade Park
Hospital. During the year preceding the hearing, Berti purchased
over $50,000 worth of materials for, and had shipped to, the Wade Park
Hospital job from outside the State of Ohio. We find that Berti and
Malan are engaged in commerce within the meaning of the Act.
2. The labor organizations involved
The parties stipulated, and we find, that the Respondents and Local
2 are labor organizations within the meaning of Section 2(5) of the
Act.
3. The dispute
The Work at Issue
Donn nailable metal studs,' used in the erection of interior parti-
tions or walls, receive a surface of either gypsum board or rock lath
on one side, and, where specified, metal lath on the other side, to which
plaster may be applied. The work in dispute herein is the installation
of the studs.
The Basic Facts
As previously indicated, Malawi is the general contractor for the con-
struction of the Wade Park Hospital. In June 1961 Malan subcon-
tracted to Berti the lathing, plastering, and accoustical title installa-
tion work on this job, which included the erection, at the site, of all
interior partitions of the Wade Park Hospital.
The erection of interior partitions on this job includes the installa-
tion of metal studs. The specifications permit either nailable or non-
nailable metal studs. With the approval of the Veterans' Adminis-
tration Berti choose to use Donn nailable metal studs. In the erection
of the interior partitions, parallel metal tracks are installed in the
floor and ceiling. The studs are then vertically attached to these
tracks and channel iron strips are run horizontally through slots in
the studs in parallel rows and tie-wired to each stud for bracing pur-
poses. Metal lath and/or rock lath or gypsum board, as required in
the building specifications, is then nailed to this framework, to which
plaster finishing is applied where specified. Berti has not employed
any carpenters for the job and has assigned all of the above-described
work to lathers. Although Berti, as a member of a Detroit, Michigan,
contractor's association, is party to a collective-bargaining agreement
8 The parties stipulated that Malan is engaged in commerce within the meaning of
the Act.
4 "Donn" is a trade name for a type of naitable metal stud.
CUYAHOGA, LAKE, ETC., COUNTIES DISTRICT COUNCIL 165
with the Carpenters District Council of Detroit, Wayne and Oakland
Counties and Vicinity, which represents carpenters in that area, it
is not a party to any collective-bargaining agreement with the Re-
spondents in the Cleveland area, nor had it, at any time prior to
August 1, 1962, been a party to any collective-bargaining agreement
with Local 2."
Berti began working at the Cleveland jobsite in December 1961. In
January or February 1962 Saul Bernstine, carpenter steward at the
jobsite and an employee of Malan, mentioned to Frank Nicolosi,
Berti's agent and general manager in the Cleveland area, that the in-
stallation of the studs belonged to carpenters. In late February or
early March 1962 Berti received permission to use Donn nailable metal
studs on the job and several weeks later assigned the installation
thereof to his lather employees, who began to install them in early
April. However, it was not until June 9, 1962, that Thomas Welo,
business representative of Respondent Carpenters District Council,
by telegram, requested Berti to assign the erection of Donn nailable
metal studs to carpenters. Berti did not comply with this demand.
Thereafter, the Respondents submitted their claim to the work to the
National Joint Board for Settlement of Jurisdictional Disputes in the
Building and Construction Industry, herein called the Joint Board.
On or about June 21 Business Representative Welo, Nicolosi, and
Berti's president, Berti, met to discuss their differences. Berti testi-
fied that We] o said to him "if we didn't use carpenters, that they were
going to put us off the job." On June 21 the Joint Board awarded the
installation of the Donn nailable metal studs to the Respondents, and,
by letter, dated June 23, 1962, notified Berti, Malan, the United Broth-
erhood of Carpenters and Joiners, and the Wood, Wire and Metal
Lathers International Union, of this decision.
Berti did not comply with the decision of the Joint Board. On
June 29 Berti, representatives of Malan, Local 2, and Respondents, in-
cluding Welo, met to discuss the matter. At this meeting, although
requested by Respondents to assign the particular work to carpenters,
Berti refused, claiming his company was not bound by the award.
Later in the day the carpenters at the jobsite walked off the job and
some of them began picketing, carrying signs which read, "This con-
tractor unfair." No designation of contractor or union was given.
The Respondents do not deny that they called the carpenters off the
job and authorized the picketing. The picketing ceased July 2, but
the carpenters remained off the job until July 30 when they returned to
work pursuant to the terms of a stipulation entered into on July 27
in settlement of a Section 10(1) injunction proceeding. Prior thereto,
but several days after the carpenters walked off the job, Berti, at the
'On August 1, 1962 , Berti and Local 2, as representative of Berti's lather employees,
entered into a collective-bargaining contract.
166 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request of Malan's vice president, took his lathers off the job. On
July 30 the lathers also returned to work and resumed the installation
of the nailable studs.
Contentions of the Parties
Malan takes no part in this dispute.
Berti contends that it had not agreed to any voluntary method of
adjustment of the dispute at the Wade Park Hospital job, that it has
always assigned the disputed work to lathers who traditionally per-
form such work, and that the assignment is consistent with industry
and area practice, and economy and efficiency of operations.
Respondents, asserting the right of carpenters to the work in dis-
pute, contend that Berti had submitted to processes of the Joint Board
which issued a decision in their favor; that their claim to this work is
supported by custom and area practice, economy and safety, and Joint
Board decisions in other cases.
Local 2 claims Berti's assignment of the disputed work to lathers
was proper. It contends Berti did not by contract or otherwise volun-
tarily submit to the jurisdiction of the Joint Board; that the Joint
Board award is not controlling; that Berti's assignment of the work in
dispute fell within the coverage of Berti's contract with Malan (the
plastering specifications specifically included the erection of metal
studs) ; that the assignment is consistent with company, industry, and
area practice and comparative training and efficiency of operation, is
supported by basic craft jurisdiction agreements and decisions of
record, and is borne out by the historical development of the work
involved.
Applicability of the Statute e
The charges allege a violation of Section 8(b) (4) (D). The record
shows, and it is undenied by Respondents, that on June 29, 1962, Re-
spondents called the carpenters off the job and established a picket
line at the jobsite because members of the Respondents were not erect-
ing the Donn nailable metal studs. Although the picketing terminated
July 2, 1962, the carpenters did not return to work until July 30, 1962,
under the circumstances as described above.
We find that 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 determination under Section 10 (k) of the Act.
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
In their brief to the Board, Respondents moved to dismiss this proceeding because of
the Joint Board award to 'them in June 1962 . For the reason appearing hereinafter,
however, we cannot view the Joint Board proceeding as an agreed -upon method for the
voluntary adjustment of the dispute , and Respondents ' motion is accordingly denied.
CUYAHOGA, LAKE, -ETC., -COUNTIES DISTRICT COUNCIL 167
relevant factors. The following factors are asserted in support of the
claims of the parties herein :
(1) Historical development: The Charging Parties and Local 2
introduced testimony to show that metal studs in interior partitions
were developed over 50 years ago as a replacement for masonry parti-
tions, that lathers have traditionally installed the metal studs, and
that installation of nailable metal studs is basically the same as any
other type metal stud.
(2) Efficiency of operation: The Respondents offered no evidence
to show that special training was given its apprentices- in the disputed
work, merely contending that carpenters were qualified to perform the
work. Local 2, however, claims that lathers, because of their on-the-
job training in this work during their 3-year apprenticeship, are better
qualified. On the record as a whole, however, we are not persuaded
that the ability of the lathers to perform this work is greater than
that of the carpenters. However, before the stud is erected, parallel
tracks are installed on the floor and ceiling. Then, a..metal shoe for
the stud is wired to the ceiling track. After the stud is erected and
fastened to the shoe, channel iron strips are installed horizontally
through grooves in the studs and wired to each stud for bracing effect.
The installation of the tracks and shoes and the insertion of the chan-
nel iron strips by lathers is not questioned lie-rein.? To prevent damage
to the installed tracks by other trades working in the area, it is neces-
sary that the studs be installed immediately after the tracks are in-
stalled. After the studs are installed, it is also necessary that the
bracing channel irons be inserted to make the studding more rigid and
less vulnerable to damage. The installation of floor and ceiling tracks,
and studding and bracing, is more efficiently performed by one craft
as a continuous operation. Berti's assignment of the disputed work to
lathers is therefore consistent with efficiency of operation in the instal-
lation of partitions.
(3) Economy and safety: The record shows that the disputed work
is performed in essentially the same manner, with virtually the same
tools, and apparently with the same safety considerations, regardless
of which craft performs the work.
As set forth above, the erection of the studs is merely one step in
the installation of the partition and can only be done after the floor
and ceiling tracks are in place. Likewise, it is important that the
Although the Respondents in their brief before the Board state that "wherever
carpenters install nallable studs they also install the tracks," it is not clear , on the record
as a whole , that they are claiming the installation of the tracks as well as the studs. See
Local 964, United Brotherhood of Carpenters and Joiners of America , AFL-CIO (Carleton
Brothers Company ), 141 NLRB 1138 where the Carpenters Union in a similar dispute
with the Lathers Union claimed only the installation of nailable metal studs, and not the
tracks as well. In any event they do not claim the installation of bracing material which
is an integral part of the installation of the studs.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
studs be braced promptly after installation to lessen the danger of
damage. Thus, it appears more economical for the same craft to per-
form all these steps, rather than require members of one craft to stand
by awaiting the completion of certain steps.
(4) Company, area, and industry practice: Considerable testimony
was taken as to the installation of nailable metal studs to receive other
than dry wall materials on construction projects in the Cleveland area
and throughout the country. Although we are not persuaded by this
testimony that industry practice favors either disputant, it appears
that area practice favors the lathers. Berti has employed only lathers
in the past to perform similar work, and its assignment to the lathers
herein therefore conforms to past company practice. It should also be
noted that the architectural specifications for the project included the
work in dispute within the general section of lathing and plastering,
and not in that on carpentry, thereby indicating that at least in the
architect's opinion the work in dispute is customarily done by the
lathing contractor.8
(5) Jurisdictional precedent: According to the basic jurisdiction
grant in 1903 by the American Federation of Labor and its Building
Trades Department, the Carpenters International Union has jurisdic-
tion over woodwork, while the Lathers Union's jurisdiction covers
light iron construction, furring and lath (wood, wire, and metal), for
the purpose of holding plaster or like material. Local 2 contends that
the Carpenters International Union, in a 1903 agreement with the
Lathers Union, agreed that jurisdiction over iron studding belongs to
lathers. Respondents, however, produced evidence to show that the
Carpenters International Union never ratified the 1903 agreement,
and that, in fact, it has always denied the validity of the alleged agree-
ment. We are thus unable to give weight to this factor in determining
the assignment of the work in dispute herein.
(6) Decisions of the Joint Board: Both Local 2 and the Respond-
ents introduced in evidence decisions by the Joint Board involving
disputes concerning the proper assignment of the work of installing
nailable metal studs. On the basis of these decisions, each Union con-
tends that its members are entitled to perform the work in dispute.
As we said in United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local 1622 (0. R. Karst), supra, "We do not
believe that such decisions indicate more than that the instant dispute
between the Unions is one of long standing and that neither Union
has conceded to the other the right to perform the work in dispute."
The same may be said in this case. Furthermore, since in the instant
case all of the parties had not agreed to be bound by decisions of the
8 See United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local 1622
( 0. R. Karst ), 139 NLRB 591.
CUYAHOGA, LAKE, ETC., COUNTIES DISTRICT COUNCIL 169
Joint Board,° a decision by that body in the instant matter is merely
one of the factors which we must consider in assigning the disputed
work.lo
Conclusion as to the Merits of the Dispute
In International Association of Machinists, Lodge 1743 (J. A. Jones
Construction Co.)," the Board set forth certain criteria to be con-
sidered in assigning disputed work, and noted that each decision would
be based upon commonsense experience, and the balancing of the rele-
vant factors. Weighing the pertinent factors in this case, we believe
that the lathers are entitled to the work in dispute. Such factors as
that the work has been awarded to the lathers, that these employees
are sufficiently skilled to perform the work and have performed it to
the satisfaction of Berti, who desires to retain them on the job, that
the assignment of the work not only conforms to Berti's past practice
and area practice, but the comparative economy and efficiency of opera-
tions, all indicate the superior claim of the lathers to the disputed
work. We conclude, therefore, from the facts presented to us, that
the assignment of the work in dispute by Berti to his lathers should
not be disturbed.12 Accordingly, we shall determine the existing juris-
dictional 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 of Berti who are repre-
sented by Local 2, but not to that Union or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following determination of dis-
pute, pursuant to Section 10(k) of the Act :
1. Lathers employed by Berti, who are represented by Local No. 2,
Wood, Wire and Metal Lathers International Union, AFL-CIO, are
entitled to perform the work of erecting Donn nailable metal studs
used in the installation of interior partitions on the United States
Veterans Hospital, Wade Park, Cleveland, Ohio.
2. Cuyahoga, Lake, Geauga and Ashtabula Counties District Coun-
cil and Locals 11, 182, 105, 404, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, are not entitled, by means pro-
scribed by Section 8(b) (4) (D) of the Act, to force or require Berti
to assign the above work to carpenters.
e See Local 450, International Union of Operating Engineers ( Sline .Industrial Painters),
119 NLRB 1725, 1732; and Local 178, Wood, Wire and Metal Lathers' International
Union et at. (Newark & Essea Plastering Co.), 121 NLRB 1094, 1104.
1°Local 964 , United Brotherhood of Carpenters and Joiners of America, AFL-CIO
(Carleton Brothers Coany ), supra.
n 135 NLRB 1402.
'Local 96 4, United Brotherhood of Carpenters ' and Joiners . of America, AFL-CIO,
( Carleton Brothers Company ), supra.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Within 10 days from the date of this Decision and Determination
of Dispute, Cuyahoga, Lake, Geauga and Ashtabula Counties District
Council and Locals 11, 182, 105, 404, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, shall notify the Regional
Director for the Eighth Region, in writing, whether or not it will re-
frain from forcing or requiring Berti, by means proscribed by Sec-
tion 8(b) (4) (D), to assign the work in dispute to carpenters rather
than to lathers.
Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local Union
No. 327, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
and S & W Construction Company of Tenn ., Inc. and Inter-
national Brotherhood of Electrical Workers, AFL -CIO, Local
Union No . 429 (George D. Edwards Electric Company, Inc.
and Purvis Electric Company, a Joint Venture ). Case No.
26-CD-11. April 22, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor Re-
lations Act, following the filing of charges under Section 8(b) (4) (D)
of the Act. A hearing was held before Roger B. Holmes, hearing
officer, on February 5 and 6, 1963. All parties who appeared at the
hearing were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing upon 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
all parties and have been duly considered.
Upon the entire record in the case, the Board 2 makes the following
findings :
1. S & W Construction Company of Tennessee, Inc., herein called
S & W, is a Tennessee corporation engaged in building construction
as a general contractor. George D. Edwards Electric Company, Inc.,
herein called Edwards, is a Tennessee corporation engaged in con-
struction work as an electrical subcontractor. Harry Purvis, individu-
ally, and d/b/a Purvis Electric Company, herein called Purvis, is also
engaged in construction work as an electrical subcontractor. During
the past 12 months each of the foregoing companies purchased and
'At the close of the hearing, the Teamsters moved "to dismiss this hearing" on the
grounds that there is no showing that a jurisdictional dispute exists , there is no showing
of a violation of Section 8(b) (4) (D ), and there is no evidence that the Teamsters induced
a work stoppage in connection with the unloading of "ramming paste." For reasons stated
infra the motion is denied.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated Its
powers in connection with this case to a three-member , panel [ Chairman McCulloch and
Members Rodgers and Leedom].
142 NLRB No. 19.