Local 964, United Brotherhood Carpenters, Etc.

National Labor Relations Board - Board Decisions

Apr 9, 1963

141 N.L.R.B. 1138 (N.L.R.B. 1963)

1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 964, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Robert A. W. Carleton , d/b/a Carleton
Brothers Company. Case No. 2-CD-248. April 9, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the Act following
a charge filed by Carleton Brothers Company, herein called Carleton,
alleging that Local 964, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, herein called the Respondent, had induced and
encouraged employees to strike for the purpose of forcing or requiring
Carleton and McHugh, Inc., herein called McHugh, to assign particular
work to members of the Respondent rather than to members of Local
143, Wood, Wire and Metal Lathers International Union, AFL-CIO,
herein called Local 143. A hearing was held before Anthony A.
Ambrosio, hearing officer, between August 16 and October 3, 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 officer made
at the hearing are free from prejudicial error and are hereby affirmed.
The Respondent and Local 143 filed briefs herein which have been duly
considered.
Upon the entire record in this case, the Board makes the following
findings: 1
1. The business of the employers
Carleton, an individual proprietorship with its principal office in
Palisades, New Jersey, is a general contractor. McHugh, a New Jer-
sey corporation with its principal offices in Montclair, New Jersey, is
a lathing and plastering contractor. Both companies are engaged in
the construction industry in various States, including the State of
New York. During the year preceding the instant hearing, each
received at their New York operations, supplies valued in excess of
$50,000 directly from out-of-State sources. We find that Carleton
and McHugh are engaged in commerce within the meaning of the
Act.
2. The labor organizations involved
Respondent and Local 143 are labor organizations within the mean-
ing of Section 2 (5) of the Act.
'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].
141 NLRB No. 101.
LOCAL 964, UNITED BROTHERHOOD CARPENTERS, ETC. 1139
3. The dispute
The work at issue
Nailable metal studs used in the erection of interior partitions or
walls receive a. surface of either plaster or dry wall material. The
work in dispute herein is the installation of the nailable type of metal
studs which are to receive dry wall material.
The basic facts
Carleton is the general contractor for the construction of the new
Pearl River High School at Pearl River, New York. On August 30,
1961, Carleton subcontracted to McHugh the lathing and plastering
work on this job, which included the erection of all ceilings, parti-
tions, and perimeter walls of the buildings at the site.
The erection of partitions and perimeter walls on this job includes
the installation of metal studs. In the erection of interior partitions,
these studs, which have a cross section about 2 by 4 inches, are attached
to parallel tracks on the floor and ceiling. After the studs are attached
to these, tracks, channel iron strips are run horizontally through slots
in the studs and tied to each stud for bracing purposes. This frame-
work then receives wet wall or dry wall surfaces as specified by the
building plans. Plaster finishing is applied by members of Local 143,
while dry wall material is applied by members of Respondent. Carle-
ton, as a member of the Contractors Association of Rockland County,
New York, herein called the Contractors Association, is party to a
collective-bargaining agreement with Respondent executed in March
1961. Carleton has employed members of Respondent to perform
various types of carpentry work at the site. McHugh, as a member
of the New Jersey Contracting Lathers and Plasterers Association,
herein called the Lathers Association, is party to a collective-
bargaining agreement with Local 143. McHugh employs members of
Local 143 in the installation of partitions and perimeter walls at the
Pearl River jobsite.
Shortly after McHugh was awarded the lathing and plastering con-
tract, Frank Kearsey, a business agent of Respondent, asked Terence
McHugh, president of McHugh, if he intended to assign the work of
installing nailable metal studs at the Pearl River site to carpenters.
McHugh advised Kearsey that he had a contract with Local 143 and
accordingly felt obligated to assign this work to lathers.
McHugh commenced work at the site in October 1961, whereupon
Kearsey informed Carleton that the Carpenters claimed the installa-
tion of metal studs, and that he intended to submit their claim to the
National Joint Board for Settlement of Jurisdictional Disputes in the
Building and Construction Industry, herein called the Joint Board.
708-006-64-vol. 141-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, on or about March 1, 1962, the Joint Board awarded the
installation of those nailable metal studs which were to receive dry
wall material to the Respondent, and notified Carleton, McHugh,
local 143, and Respondent of this decision by letter dated March 2,
1962.
On two occasions, in April and May 1962, the Respondent picketed
the jobsite with signs referring to nonpayment of welfare benefits
allegedly due the Respondent. On about June 25, 1962, Kearsey told
Carleton's job superintendent, Urbani, "Well, I see that metal studs
are not erected by the carpenters, therefore I'm pulling the carpenters
off the job." Kearsey then caused the two carpenters employed at the
site at the time to stop working. About July 1, 1962, the Respondent
commenced picketing the Pearl River jobsite with signs bearing
the name of Respondent and stating "Help us win our dispute with
Carleton Brothers." The picketing was terminated on about July 27,
1962, pursuant to the terms of a stipulation entered into in settlement
of a Section 10(1) injunction proceeding. Members of Respondent
thereafter resumed the performance of various carpentry work at the
site, including the installation of wood blocking for door frames and
the affixing of gypsum board to metal studs installed by lathers.
Contentions of the parties
Carleton contends simply that it has subcontracted all lathing and
plastering work at Pearl River High School, including metal stud
installation, to McHugh, and that the assignment of work involving
the installation of metal studs was McHugh's to make.
McHugh contends that it has not agreed to be bound by decision
of the Joint Board; that it has never agreed to any voluntary method
of adjustment of jurisdictional disputes; and that its assignment of
the work in dispute to members of Local 143 was consistent with its
contract with Local 143 and proper.
Respondent, asserting the right of carpenters to the work in dispute,
contends that Carleton was bound by the contract between the Con-
tractors Association and Respondent to assign the work in dispute
to its members; that Carleton and McHugh had submitted to the proc-
esses of the Joint Board, which issued a decision in its favor; that the
installation of studding, including metal nailable studs, to receive dry
wall material is an integral part of the carpenter's craft; and that its
claim to this work jurisdiction is also supported by historical develop-
ment, efficient operation, area and industry practice, jurisdictional
precedent, economy and safety, and Joint Board decisions in other
cases.
Local 143 claims that McIlugh's assignment of the disputed work
to lathers was proper-it contends that McHugh was not a party to
any agreed upon method for the voluntary adjustment of the dispute,
LOCAL 964, UNITED BROTHERHOOD CARPENTERS, ETC. 1141
that the Joint Board award is not controlling; and that McHugh's
work assignment is pursuant to the collective-bargaining agreement
between McHugh and Local 143, is consistent with company and in-
dustry practice and comparative efficiency of operation, is supported
by basic craft jurisdiction and agreements and decisions of record,
and is borne out by the historical development of the work involved.
Applicability of the statute 2
The charge alleges a violation of 8(b) (4) (D). The record shows,
and it is undenied by Respondent, that on or about June 25, 1962,
Kearsey "pull[ed] the carpenters off the job" because members of
Respondent were not erecting the metal studs, and established a
picket line at the jobsite. The picketing continued until about July 27,
1962, when it was terminated,as described above. Members of various
trades refused to work on the job around the first week of picketing.
We find that there is reasonable cause to believe that a violation of
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
relevant factors. The following factors are asserted in support of
the claims of the parties herein :
(1) Collective-bargaining agreements: The Unions rely on their
collective-bargaining agreements with Carleton and McHugh, respec-
tively, to support their claims to the disputed work. Upon examina-
tion and analysis of the pertinent provisions of the contracts,3 we con-
clude that neither contract expressly covers the work in question.
' At the hearing, and in its brief to the Board , Respondent moved to quash the notice
of hearing herein because of the Joint Board award to it in March 1962. For the reason
appearing hereinafter , however , we cannot view the Joint Board proceeding as an agree-
upon method for the voluntary adjustment of the dispute, and Respondent's motions to
quash are accordingly denied.
'The Carpenters Union's agreement provides , in pertinent part, as follows:
FIFTH. . . . The parties hereto agree that the work jurisdiction covered by this
Agreement covers the following : "handling, milling, fastening, joining, assembling,
erecting and/or dismantling of materials . . hollow metal . . . and any additional
work agreed upon between the parties to this Agreement shall be the work of the
11members of the unit covered by this Agreement .. . .
SEVENTH. . . . In addition to the work jurisdiction herein before referred to, the
following is mutually agreed to by the parties:
. . all substitutes that require the ability and tools of a carpenter shall be
erected , installed and handled only by employees in the unit . . .
The Lathers Union's agreement provides , in pertinent part, as follows:
SECTION 1 . The installation , erection , construction and completion of the follow-
ing work shall be contracted for by the Employer and shall be assigned to and per-
formed by journeymen lathers and apprentices:
"All carrying bars, purhns and furring regardless of size ; light iron and metal
furring of all descriptions , such as rods, channels , flat iron, Nailock , Screwlock.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Historical development: Respondent introduced testimony to
show that the nailable metal stud was developed as a replacement for
the 2- by 4-inch wooden stud traditionally installed by carpenters.
Local 143 witnesses testified that lathers have performed the work of
installing metal studs for some 50 years and that installation of the
nailable stud herein disputed is basically the same as any other type
metal stud.
(3) Efficiency of operation: There is no serious dispute in the record
about the ability of either carpenters or lathers to perform the erection
of nailable metal studs. 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 channel
iron strips by lathers is not questioned herein. 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 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. McHugh's assignment of the disputed
work to lathers is therefore consistent with efficiency of operation in
the installation of partitions and perimeter walls.
(4) Company, area, and industry practice: Considerable testimony
was taken as to the installation of nailable metal studs on construction
projects elsewhere in the area and throughout the country. We are
not persuaded by this testimony that area or industry practice favors
either disputant. McHugh has employed only lathers in the past to
perform similar work, and its assignment to the lathers herein, there-
fore, conforms to past company practice.
(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. Respondent produced
evidence to show that the Carpenters International has never ratified
this agreement and that they have refused, in the past, to abide by it.
Local 143 has failed to show that Respondent has ever agreed, in any
manner, to be bound by the 1903 agreement. We are thus unable to
Pomeroy, T bar, H bar, Z bar, metal splines ; all light iron and metal studs such as
'Stran Steel, Penn metal, Soule , Truscon , and all other types of light iron and metal
studs and all other light iron furring erected to receive lath and plastic or acoustical
materials."
LOCAL 964, UNITED BROTHERHOOD CARPENTERS, ETC. 1143
give much weight to this factor in determining the assignment of the
work in dispute herein.
(6) Economy and safety : The record shows that the disputed work
is performed in essentially the same manner, with virtually the same
tools, and apparently in the same safe manner, 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 or perimeter wall, and can only be
done after the floor and ceiling tracks are in place. Likewise, it is
important that the studs be braced promptly after installation to
lessen the danger of damage. Thus, it appears more economical for
the same craft to perform all these steps, rather than require members
of one craft to stand by awaiting the completion of certain steps.
(7) Decisions. of the Joint Board: Both Local 964 and Local 143 in-
troduced in evidence decisions by the Joint Board involving disputes
concerning the proper assignment of the work of installing nailable
studs. On the basis of these decisions, each Union contends 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), 139 NLRB 591, "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 con-
ceded 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 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.
CONCLUSION AS TO THE MERITS OF THE DIsrtm
In International Association of Machinists , Lodge No. 1743 (J. A.
Jones Construction Co.), 135 NLRB 1402 , the Board set forth certain
criteria to be considered in assigning disputed work , and noted that
each decision would be based upon commonsense , experience , and the
balancing of the relevant 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 McHugh , who desires to retain
them on the job , that the assignment of the work is not only con-
sistent with the terms of McHugh 's contract with Local 143, but con-
forms to McHugh's past practice , and the comparative economy and
efficiency of operations 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 McHugh to his
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lathers should not be disturbed. Accordingly, we shall determine the
existing jurisdictional dispute by deciding that lathers, rather than
carpenters, are entitled to the work in dispute. In making this de-
termination, we are assigning the disputed work to the employees of
McHugh who are represented by Local 143, 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 McHugh, who are represented by Local 143,
Wood, Wire and Metal Lathers Union, AFL-CIO, are entitled to
perform the work of erecting nailable metal studs used in the installa-
tion of partitions and perimeter walls on the Pearl River High School,
Pearl River, New York.
2. Local 964, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is not entitled by means proscribed by Section
8(b) (4) (D) of the Act, to force or require the Employers to assign
the above work to carpenters.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 964, International Brotherhood of Carpenters
and, Joiners of America, AFL-CIO, shall notify the Regional Director
for the Second Region, in writing, whether or not it will refrain from
forcing or requiring the Employers, by means proscribed by Section
8(b) (4) (D), to assign the work in dispute to carpenters rather than
to lathers.
New York Central Transport Company and Sidney Schwartz.
Case No. 7-CA-3344. April 9, 1963
SUPPLEMENTAL DECISION AND ORDER
On June 29, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the operations of Respondent came within the jurisdiction of the Na-
tional Mediation Board, rather than the National Labor Relations
Board. Accordingly, without passing upon the merits, the Trial
Examiner recommended that the complaint be dismissed.
On September 28, 1962, the Board issued its Decision and Order,'
finding that Respondent was subject to the National Labor Relations
Act, and remanding the proceeding to the Trial Examiner for the
1 New York Central Transport Company, 138 NLRB 1325.
141 NLRB No. 99.