Lathers Local 62, Wood, Wire, Etc., Int'l Union

National Labor Relations Board - Board Decisions

Dec 14, 1964

150 N.L.R.B. 21 (N.L.R.B. 1964)

LATHERS LOCAL 62, WOOD, WIRE, ETC., INT'L UNION 21
g. Service truck drivers
In its motion to amend or clarify MMS sought this classification.
The record reveals that this is a general term for all jobs which in-
volve the driving of service trucks such as those discussed above. Thus,
there is no evidence in the record concerning this alleged classification.
The parties stipulated that at the Employer's other mines in Nevada,
Arizona, and New Mexico the Company has similar service trucks
which operate in the same manner as in Bingham, that the employees
who drive the service trucks are not classified as drivers, and that in
Nevada and New Mexico they are represented by MMS, while in Ari-
zona the Steelworkers represents the haulage truck drivers as well as
operators of heavy equipment and MMS represents the remaining pro-
duction and maintenance employees except machinists and electricians.
We find, on this record, that the classifications of tire service truck
driver, lubrication truck driver, field repair truck driver, line truck
driver, repair gang truck driver, welder's truck driver, and service
truck driver do not exist, and that the motions to include these alleged
classifications into the various certified units are without merit. Ac-
cordingly, the motions, to the extent that they seek to add these al-
leged classifications to existing certifications, shall be denied.
[The Board clarified the certification in Case No. R-2719 (20-R-
834) by specifically including, in the description of the appropriate
unit, the classifications of machinist (T), maintenance helpers, tire re-
pairman, and lubrication man; clarified the certification in Case No.
R-5114 (20-R-839) by specifically including, in the description of the
appropriate unit, the classification of heavy-duty truck driver; and
denied the motions to amend and/or clarify the certifications in these
cases, except as specifically granted above.]
Lathers Local Union No. 62, Wood , Wire & Metal Lathers Inter-
national ^ Union, AFL-CIO and Belou & Co. Accoustics, Inc.
Case No. •15-CD-45. December 14, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the Act following
a charge filed by Belou & Co. Accoustics, Inc., herein called Employer
or Belou, alleging that Lathers Local Union No. 62, Wood, Wire &
Metal Lathers International Union, AFL-CIO, herein called Lathers,
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 Lathers rather than to employees repre-
sented by Carpenters Local Union. No. 1846, herein called Carpenters.
150 NLRB No. 10.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was held before Hearing Officer Jerome F. Connor on Sep-
tember 3 and 4, 1964. 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 Officer made at the hearing are free from prejudicial
error and are hereby affirmed. Thereafter, briefs were filed by the
Lathers and Carpenters which have been duly considered.'
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 [Members Leedom, Fanning, and Brown].
Upon the entire record in this proceeding, the Board makes the
following findings :
1. The business of the Company
The parties stipulated that Belou & Co. Accoustics, Inc., a New
Orleans firm, is engaged in specialty work of installing ceilings, parti-
tions, and fireproofing. During the year preceding the hearing Belou
purchased more than $100,000 worth of goods from outside the State
of Louisiana. The parties agree and 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 juris-
diction herein.
2. The labor organizations involved
The parties stipulated and we find that the Lathers and Carpenters
are labor organizations within the meaning of Section 2(5) of the Act.
3. The work in dispute; background facts
The disputed work which gave rise to this proceeding consists of
attaching horizontal metal tracks to the floors and ceilings and then
inserting metal studs vertically within the tracks. To these studs and
tracks, a dry wallboard called sheetrock is attached by a screw-nail.
The nail passes into the sheetrock, metal tracks, and vertical studs.
Perrilliat-Rickey, a general contractor engaged in building an entire
floor at the Royal Orleans Hotel, New Orleans, Louisiana, subcon-
tracted the job of doing the disputed installation and attaching the
sheetrock to B. E. King & Sons, who in turn subcontracted the work
to Belou, the Employer herein. On or about July 28, 1964,2 William
1 The Employer filed a motion requesting that the Board admit into evidence a letter
previously rejected by the Hearing Officer. The letter from the National Joint Board,
dated September 14, 1964, addressed to the New Orleans Chapter of the Associated Gen-
eral Contractors of America sets forth the noncompliance status of the Lathers and
Carpenters with the procedural rules of the Joint Board as of that date. In the absence
of objection by any of the other parties , the motion is hereby granted.
2 Unless otherwise indicated all dates are 1964.
C
LATHERS LOCAL 62, WOOD, WIRE, ETC., INT'L UNION 23
S. Belou, president of Employer, assigned the above-described work
to his own employees, who were members of the Carpenters.' His de-
cision to assign the work was motivated by the fact that he had cus-
tomarily used carpenters for this work and it was his understanding
that this was in accord with practice in the New Orleans area.
Sometime between July 28 and August 1 Robert Villarrubia, busi-
ness agent of Lathers Local 62, came to Belou's office and asked him
to check on who was going to perform the installation of metal tracks,
studs, and sheetrock. Villarrubia indicated that Belou had "mis-
assigned" the work of installing metal tracks and studs to the car-
penters, stated it would be necessary to rectify the "misassignment,"
and said that "it could be a long drawn-out tough procedure." On or
about August 1 Belou met with Villarrubia and Lathers International
Representative White to discuss the work assignment. White con-
tended that the work should have been assigned to lathers on the basis
of a 1903 agreement between the parent bodies of Carpenters and
Lathers, which declared the work in question to be within the juris-
diction of the Lathers Union. White further argued that a constitu-
tion which he displayed showed that the Lathers should be awarded
the work. White indicated at that meeting that the Lathers was in
"non-compliance" with the Joint Board for Settlement of Jurisdic-
tional Disputes and suggested that a 10 (k) hearing be held to resolve
the craft jurisdiction of the work in question. White stated that the
job would be picketed if Belou did not change his assignment.
About August 2 a meeting was held at the office of the general con-
tractor, Perrilliat-Rickey. Among those present were Clairborne
Perrilliat, secretary-treasurer of the company bearing his name, Belou,
White, and Villarrubia. White again asserted that a misassignment
had been made, and Perrilliat retorted that the assignment seemed
proper on the basis of area practice and Joint Board decisions.
Perrilliat, however, agreed to investigate the matter and contact White
later in the week. Subsequently, White was again advised by Per-
rilliat that the assignment seemed proper but perhaps a Joint Board
decision could be secured. White again said that the Lathers was in
"non-compliance" with the Joint Board.
About August 6 a picket appeared at the jobsite and located himself
near the outside hoist. The sign he carried read :
BELOU & CO
UNFAIR
PAYING WAGES &
BENEFITS LESS
THAN THOSE
ESTABLISHED BY
LATHERS LOCAL #62
8 The Carpenters are regularly employed by Belou and are transferred from job to job.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The picketing precipitated a walkout by Members of all crafts on
the job except Carpenters, Painters, and Laborers. As a result of an
August 7 notification by Belou to the chairman of the Joint Board in
Washington, D.C., of the circumstances of the dispute and direction
of the chairman to Lathers to remove the picket line, there was an
agreement by Lathers to refrain from further picketing until the dis-
pute could be formally resolved. The picketing was discontinued
about August 20. Thereafter, the Employer filed the instant charge.
Contentions of the Parties
Carpenters claims the disputed work, i.e., installing metal tracks
and studs which are to receive drywall covering, on the basis of a 1962
agreement between the two unions herein concerned, which it asserts
was in effect up to the time of the assignment of the work by. the Em-
ployer and which recognized that the type of work in dispute belongs
to the carpenters. It also relies on numerous decisions of the National
Joint Board for Settlement of Jurisdictional Disputes. Carpenters
further contends that its claim is supported by area and industry
practice; that the architectural specifications, listed the work in • dis-
pute in the carpentery section rather than in the lathing and plaster-
ing section of the contract, and that installation of studding, is a tradi-
tional function of carpenters. The Carpenters also alleges that there
is a settlement and/or agreed-upon methods for settlement of the dis-
pute in that (1) the disputants have by the 1962 agreement assigned
the work to the carpenters, and (2) the parties are bound to use the
facilities of the Joint Board.
The Lathers relies on a 1903 agreement between the contending
unions, which is incorporated in the September 1963 edition of "Plans
for Settling Jurisdictional Disputes Nationally and Locally." It also
relies upon area and industry practice to support its claim, and con-
tends that the installation of steel tracks and studding is a historical
and integral part of the lather's trade which should be performed by
lathers regardless of the type of material to be attached to the studs.
It argues that its contract with Belou, efficiency of operation, loss of
work opportunities for its members, and similarity of this work to
other work performed by its members support its claims to the work
for lathers. Lathers disputes the Carpenters' position that there was
a settlement or an agreed-upon method of settlement.
The Employer states that the work has been assigned to the car-
penters because it was its practice to so assign the work and because it
was the Employer's understanding that this was the area and industry
practice.
LATHERS LOCAL 62, WOOD, WIRE, ETC., INT'L UNION 25
Applicability of the Statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8(b) (4) (D) of the Act. The Regional
Director was satisfied upon the basis of such investigation that there
was reasonable cause to believe that a violation had been committed,
and he directed that a hearing be held in accordance with Section
10(k) of the Act. On the basis of the entire record, including the
Lathers' admission that they picketed the job because of the Em-
ployer's assignment of the disputed work to the Carpenters, we find
that there is reasonable cause to believe that a violation of the Act has
occurred and that the dispute is properly before the Board for deter-
mination. In such circumstances, we are required to proceed to a
determination of the dispute.4
We find no merit in the Carpenters' contention set forth above that
the disputants have settled their disagreement and/or have an agreed-
upon method of settlement. The record shows that at no time was the
Employer a party to the May 1962 agreement. Hence, it cannot be
said that all parties have thereby entered into a voluntary settlement
of the dispute.-' In addition, although these Unions are subject to the
jurisdiction of the National Joint Board, under its rules and regula-
tions that board will not determine a dispute where, as here, both
Unions are in "non-compliance" with said rules, but will direct that
the employer may proceed with the disputed work on the basis of its
original assignment. We do not regard the refusal to make a determi-
nation as an affirmative determination on the merits. Accordingly,
we find that there is no agreed-upon method of settlement,6 and we
shall proceed to a determination of the merits of the dispute.
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 the various
relevant factors. As the Board has stated, its determination in a
jurisdictional dispute case is an act of judgment based upon common-
sense and experience and a balancing of such factors. In this case,
the factors discussed below are determinative.
4 N.L.R B. v. Radio & Television Broadcast Engineers Union, Local 1212, etc. ( Columbia
Broadcasting System), 364 U.S. 573.
5 Bricklayers and Masons International Union, Local No. 3, etc. ( Engineered Building
Specialties , Inc.), 144 NLRB 1279, 1282.
6 Under the circumstances we find it unnecessary to consider whether this Employer
would be bound by a determinatiop of the National Joint Board.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Certification; contract
Neither the Lathers nor the Carpenters has been certified by the
Board with respect to any employee involved in the instant proceeding.
The Respondent has a written contract with the Employer which
recognizes the jurisdiction of the Lathers as set forth in the Inter-
national constitution. The Board has considered a provision which
contained the same language as the constitutional section referred to
herein and has held that it did not specifically assign to the Lathers'
work similar to that here in dispute.
The Carpenters has an oral agreement with the Employer which is
not asserted as an assignment of the work.
2. Agreements of Carpenters and Lathers
The Carpenters relies heavily upon the May 2, 1962, agreement
signed by the contending organizations, which purports to assign the
disputed work to the carpenters in the following language :
The installation of metal studs-nailable or non-nailable-to re-
ceive finished materials other than plaster or sprayed-on or
trowel-applied materials is the work of Carpenters.
The 1903 agreement between the contending Unions, relied on by
the Lathers, provides in part that the Carpenters agree :
... not to assert jurisdiction over iron work including .. .
studding, or any other exclusively iron work claimed by .. .
[the Lathers, and the Lathers agreed] ..._ not to assert jurisdic-
tion over ... any wood work, including . . . wooden studding
or furring, or any other carpenter or wood work, including .. .
wooden studding or furring, or any other carpenter or wood work,
except wooden lath to receive plastic material.
However, as the 1962 agreement dealt specifically with the disputed
work, which did not exist in 1903, and to this extent the 1962 agree-
ment was patently intended as a modification of the 1903 clause, it
appears that the later 1962 document may be pertinent if it was in
effect at the relevant times.
The Lathers contends that the 1962 agreement had been canceled
orally in March 1964, by the general president of the Lathers' Inter-
national when he abrogated a June 10, 1963, agreement between the
two Unions.' However, there is no evidence of any reference at that
time to the May 1962 agreement. For this reason, and because no
7 Local 964 , United Brotherhood of Carpenters, etc (Robert A. W. Carleton, d/b/a
Carleton Brothers Company ), 141 NLRB 1138, 1141, and footnote 3.
8 This latter agreement is not material heiem as it pertains to the ceiling work.
LATHERS LOCAL 62, WOOD, WIRE, ETC., INT'L UNION 27
other evidence of an oral abrogation has been presented , we must re-
ject this contention.
On the other hand, it is clear that by letter dated August 5, 1964,
written notice was given to the Carpenters of the termination of the
May contract. However, that letter has a postal cancellation ]nark
dated August 7, 1964, the second day of the picketing herein, and was
not received by the Carpenters until August 10, 1964.
In,view of the foregoing , we find that there was an agreement be-
tween the contending Unions on or about July 28, 1964, the date the
Employer made the assignment of work, and such assignment was in
accord with that agreement . In any event, even if it were abrogated
earlier, such abrogation could not erase the history of its existence
and,the effect thereof.
The Carpenters asserts that the 1962 agreement should be disposi-
tive of the instant dispute , as it was in Acoustics d Specialties , Imc.°
It appears , however, that that case is distinguishable . For, in accord-
ing determinative weight to the interim agreement in Acoustics, the
Board noted that the criteria which had been determinative in most
jurisdictional dispute cases previously decided were not present there
and in that "state of balance ," it considered it appropriate to give
effect to the interim agreement . Clearly, the "state of balance" which
imparted decisive impact to the interim agreement in Acoustics does
not obtain here. Accordingly, it is not entitled to the controlling
effect given it in Acoustics . " However , in this case it does give support
to the conclusion that the area and local industry practice is to assign
the installation of tracks and studs to carpenters where drywall is to
be applied.
3. Company, area, and industry practice
Both disputants offered considerable evidence on area and industry
practice. The evidence, including the 1962 agreement between the
Unions discussed in paragraph 2, above, tends to indicate that there
is an area and local industry practice of assigning such work to car-
penters. Thus, the architectural specifications listed the work in the
carpentry section rather than in the lathing and plastering section of
the contract. Further, the Employer has always employed carpenters
exclusively for the work of installing tracks and studs to which dry-
wall is to be attached and hence assignment of this work to the car-
penters is in accord with the Employer's past practice, and area and
local industry practice.
0 See Local Union No. 68 , Wood, Wire and Metal Lathers International Union, AFL-CIO
(Acoustics & Specialties , Inc.), 142 NLRB 1073; Carpenters District Council of Denier &
Vicinity, AFL-CIO (J. 0. Veteto and Son ), 146 NLRB 1242.
10 For the reasons stated in his dissenting opinion in Acoustics & Specialties , Inc., supra,
Member Leedom agrees that such agreement is not entitled to controlling weight herein. -
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Efficiency of operation
It appears that both lathers and carpenters possess the skills or
ability to erect tracks and studs. The Lathers claims the work of erect-
ing tracks and studs, but not the drywall covering. The installation
of tracks and studs is precisely the same, except for the gauge of steel
used, whether the final covering is wet or drywall material, and Lathers
presently do the installation to receive wetwall covering. The disputed
work is not performed continuously while the Employer's operations
are in progress, but is done intermittently, as required, by carpenters,
who, when not so engaged, are otherwise employed by the Employer
in the exercise of functions not involved in this dispute. The Em-
ployer testified that the disputed work could be performed by either
carpenters or lathers without affecting the efficiency of the operations.
5. Action of the Joint Board
Both Unions cite numerous decisions of the National Joint Board
to support their claim to the disputed work. The record, however,
discloses, as noted above, that recently the National Joint Board re-
fused to determine any further dispute between the Respondent and
the Carpenters because they are now both in "non-compliance." As
there has been no determination by the National Joint Board on this
dispute, nor is a determination likely to be made, the past decisions of
the Joint Board are merely one of the factors which we must consider
in assigning the disputed work.
CONCLUSION
Upon consideration of all pertinent factors in the entire record, we
shall not disturb the Employer's assignment of the disputed work to
its carpenters. This assignment is in accord with area and local in-
dustry practice, as well as the Employer's method of functioning.
Accordingly, we shall determine the existing dispute by deciding that
the carpenters, represented by the Carpenters, rather than the lathers
represented by the Lathers, are entitled to the work of installing hori-
zontal metal tracks to the floors and ceiling and then inserting metal
studs vertically within the tracks to receive drywall board, called
sheetrock, which is attached to the track and stud by means of a screw-
nail, in the Royal Orleans Hotel, New Orleans, Louisiana." In mak-
ing this determination, we are awarding this work in question to em-
ployees represented by the Carpenters, but not to the Carpenters or
its members. Our present determination is limited to the particular
controversy which gave rise to this proceeding.
n Cf. United Brotherhood of Carpenters, eto., Local No. 515, AFL-CIO, et al. (J. O.
Veteto & Son), 148 NLRB 351.
SCIENTIFIC GLASS APPARATUS CO., INC. 29
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. Carpenters employed by Belou & Co. Accoustics, Inc., who are
represented by Carpenters Local Union 1846, are entitled to perform
the work of attaching horizontal, metal tracks to the floors and ceil-
ings and then inserting metal studs vertically within the tracks to re-
ceive drywall board, called sheetrock, which is attached to the track
and stud by means of a screw-nail, in the Royal Orleans Hotel, New
Orleans, Louisiana.
2. Lathers Local Union No. 62, Wood, Wire & Metal Lathers Inter-
national Union, 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 lathers.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Lathers Local Union No. 62, Wood, Wire & Metal Lathers
International Union, AFL-CIO, shall notify the Regional Director
for Region 15, in writing, whether it 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 lathers rather than to
carpenters.
Scientific Glass Apparatus Co., Inc. and Sales Drivers, Food Proc-
essors, Warehousemen & Helpers, Local 952, affiliated with the
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America . Case No. 21-CA-5559. De-
cember 14, 1964
DECISION AND ORDER
On August 6, 1964, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
1 The Respondent 's request for oral argument is hereby denied as, in our opinion, the
record, including the Respondent 's exceptions and brief, adequately presents the issues
and the positions of the parties.
150 NLRB No. 12.