Local No. 496, United Brotherhood of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Mar 17, 1965

151 N.L.R.B. 758 (N.L.R.B. 1965)

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among which are some organizations which it controls . This is not unlike a situation
where independent groceries buy from a central co-op which they maintain. While
this may amount to common ownership , it is not enough.
The fact that an employer wears two hats by owning or controlling two businesses
does not necessarily mean that he is utilizing them simultaneously and proceeding
toward one common business objective . I find that the evidence herein does not
preponderate in favor of the position of the General Counsel and I shall recommend
that the complaint be dismissed . See Miami Newspaper Printing Pressmen 's Local
No 46 (Knight Newspapers, Inc.) v . N.L.R.B ., 322 F . 2d 405 (C.A.D.C.), and
N.L.R.B . v. Deerfield Screw Machine Products Company, et al., 329 F. 2d 558
(C.A. 6).4
CONCLUSIONS OF LAW
1. Retail Store Employees Local No. 631 , Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. Wenatchee Thrifty Drugs, Inc., is an employer within the meaning of Section
2(2) of the Act.
3. It would not effectuate the purposes of the National Labor Relations Act to
assert jurisdiction over the operations of Respondent , Wenatchee Thrifty Drugs, Inc.
RECOMMENDED ORDER
In view of the foregoing -findings of fact and conclusions of law, it is recommended
that the consolidated complaint be dismissed in its entirety.
4 1 expressly do not pass upon one aspect of the jurisdictional problem because it has
not been litigated . The second complaint specifically alleged that Respondent and Thrifty
Investment Company, Inc ., d/b/a Thrifty Drugs, were one employer . I have found that
they are not . The employees involved herein were the sales or nonculinary employees.
There is a brief reference in the record to the effect that Respondent is a member of a
Wenatchee restaurant association which bargains on an associationwide basis with the
Culinary Alliance for the culinary employees of members of the Association and is subject
to a contract with that labor organization No other details are disclosed in the record
and, in my judgment , Respondent has not been put on notice that it is being charged
with coverage on such a theory . Indeed, as noted, the General Counsel expressly litigated
another theory
Local No. 496, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO [J. L. Williams & Co., Inc.] and Wood,
Wire and Metal Lathers International Union , AFL-CIO. Case
No. 1.3-CD-148. March 17, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following charges filed by Wood,
Wire and Metal Lathers International Union, AFL-CIO (herein
called Lathers) under Section 8(b) (4) (i) and (ii) (D) of the Act.
The charge alleges that Respondent, Local No. 496, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO (herein called
Carpenters), induced and encouraged employees to engage in a con-
certed refusal to perform services for J. L. Williams & Co., Inc.,
and other employers for the purpose of forcing Orville A. Papineau
Specialty Company to reassign certain work to employees repre-
sented by Respondent rather than to employees represented by the
Lathers. A hearing was held before Hearing Officer Malvin M.
Grove on December 15, 16, and 22, 1964. All parties appeared at the
151 NLRB No. 87.
LOCAL 496, UNITED BROTHERHOOD OF CARPENTERS, ETC. 759
hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence bearing on the
issues. Thereafter, Respondent and the Lathers filed briefs which
have been duly considered. The rulings of the Hearing Officer made
at the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
Upon the entire record in this case, the Board makes the follow-
ing findings :
1. J. L. Williams & Co., Inc., is a Texas corporation engaged as
a contractor and builder. During the past calendar year the gross
volume of business performed by Williams was in excess of $500,000.
J. L. Williams & Co., Inc., is the general contractor on the construc-
tion of the Olin-Mathieson plant located near Kankakee, Illinois.
The building permit for this project showed the value of $950,000.
Material used in this project valued at $61,350 has been brought into
the State of Illinois from points outside the State. We find that
Williams is engaged in commerce within the meaning of the Act and
that it will effectuate the purposes of the Act to assert jurisdiction
herein.
2. The parties stipulated, and we find, that Lathers and Carpen-
ters are labor organizations within the meaning of the Act.
3. The dispute :
The Work in Issue
The work here in dispute is the hanging of ceiling grids for the
construction of the aforesaid Olin-Mathieson plant. The work in-
volves the suspension and erection of the metal framework which
acts to support acoustical ceiling tiles and includes the securing of
hangers which support the grid system, fastening of the hangers to
the main carrier (main T's), attachment of cross-T's to the main car-
riers to form the grid pattern, and attachment of the metal molding
which substitutes for cross-T's around the perimeter of the space.
The Basic Facts
Orville A. Papineau Specialty Company was hired as a subcon-
tractor by J. L. Williams & Co. to hang the ceiling grid system.
Papineau employed members of the Lathers to perform the work in
question. On or about October 13, 1964, Orville A. Papineau, pres-
ident of Orville A. Papineau Specialty Company, was told by Clat-
terbuck, the Carpenters' business representative, that the Carpenters
claimed the work. Clatterbuck demanded that Papineau remove the
Lal,hers from the job and, when Papineau refused, stated that the
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters would strike. Beginning on or about October 16, 1964,
and continuing for 1 week thereafter, the Carpenters picketed the
jobsite with signs reading: "On Strike Against Orville Papineau,
Subcontractor, J. L. Williams Co., General Contractor, For Im-
proper Assignment of Work belonging to the Carpenters." During
this period, all work on the jobsite ceased except that performed by
Papineau's lathers. Papineau's employees finished their work by
October 18, and, from then until the picketing ended on October 23,
no work was performed on the jobsite. The Lathers filed the charge
herein on October 21.1
Contentions of the Parties
The Lathers takes the position that the work assignments were
proper, in accordance with Papineau's longstanding practice and its
contract with the Lathers specifically covering the work. In addi-
tion, Lathers contends that the work in issue is within the scope of
traditional lather's duties and that efficiency and economy would be
served by continuing the present assignment.
The Carpenters argues that Section 8(b) (4) (D) does not apply
since the object of the picketing was to protest Papineau's violation
of a contract between the Carpenters and an employer association of
which Papineau was a member .2 Carpenters contends that, should
the Board find that an issue under Section 8 (b) (4) (D) does exist
herein, its members are entitled to the work on the basis of their
efficiency, training, competence, and availability, and an agreement
with the Lathers dated June 10, 1963, which it asserts has influenced
area practice.
Applicability of the Statute
The charges herein allege a violation of Section 8(b) (4) (i) and
(ii) (D) of the Act. The record shows that about October 16, 1964,
after Papineau refused to assign the ceiling grid work to Carpenters
members, the Carpenters picketed the jobsite with signs stating that
1 Similar charges under Section 8 ( b) (4) (i) (D ) had been previously filed by J L.
Williams & Co , on October 20. On November 4, the Regional Director approved the with-
drawal of these charges.
2 The Carpenters has renewed its motion for revocation of the notice of hearing on the
ground that the Regional Director improperly conditioned approval of a settlement agree-
ment upon Carpenters ' disclaiming the disputed work. About October 27 , according to the
Carpenters , it offered to agree not to engage in any conduct proscribed by Section
8(b) (4) (D ) for the purpose of forcing the assignment of the work in issue The Regional
Director for Region 13 declined to accept a settlement unless Respondent would also agree
to withdraw its claim to the disputed work. Following Respondent 's refusal to agree, the
Regional Office denied Respondent ' s motion to revoke the notice of hearing During the
hearing herein , the Hearing Officer denied a similar motion , and the Board denied Respond-
ent's motion for special permission to appeal therefrom . As the "settlement" indicated
neither a mutual voluntary settlement nor a guarantee against future violations, we find
that granting Respondent's motion would not effectuate the purposes of the Act Accord-
ingly, the motion is denied . See Untited Association of Journeymen and Apprentices, etc.
(Kansas City Power & Light Company ), 115 NLRB 1411.
LOCAL 496, UNITED BROTHERHOOD OF CARPENTERS, ETC. 761
it was striking Papineau as subcontractor for Williams for improp-
erly assigning its work. We find, in view of these facts, that there
is reasonable cause to believe that an object of the picketing was to
force Papineau to employ carpenters rather than lathers to perform
the work in issue and that a violation of Section 8 (b) (4) (D) has
occurred.
We find without merit Respondent's claim that since the picketing
was for the purpose of enforcing its contract with Papineau, Section
8(b) (4) (D) does not apply. The object of this activity was to force
or require the reassignment of the disputed work to carpenters rep-
resented by Respondent rather than to lathers represented by the
Lathers. The fact that one basis for Respondent's action was its
contract with Papineau does not detract from the jurisdictional
nature of the dispute 8
We conclude, therefore, that the dispute herein is properly before
us 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. Employer's assignment and past practice
The record shows that with few exceptions Papineau has always
assigned the work in issue to lathers. At present, Papineau employs
a steady crew of eight lathers to perform this work and hires more
lathers if additional men are needed. It has employed carpenters
primarily to assemble and install the acoustical tiles in the com-
pleted grid. While Papineau occasionally has utilized its carpenters
to help the lathers when short of men or pressed for time, this has
not been done to any significant extent.
2. Collective-bargaining contracts
Both Unions rely on the terms of their respective contracts with
Papineau, described above. Unlike the Lathers contract,4 the Car-
penters agreement does not specifically mention the work in issue.
$ International Longshoremen 's and Warehousemen 's Union, et al. (American Mail Line,
Ltd and Mobile Crane Company ), 144 NLRB 1432, 1439
* Article IV of the Lathers contract , entitled "Work Jurisdiction ," provides that the
employer shall assign to lathers :
The erection of any and all mechanical acoustical systems such as Cupples , Economy,
Fiberglas , Jackson , Reynolds Aluminum Securities, Inerlock Grid , or any other type
or kind which takes the place of same to which acoustical material is attached or
adhered.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Carpenters agreement contains a clause requiring the employer
to resolve disputed work assignments in accordance with agreements
of record. Respondent urges that therefore certain decisions of the
National Joint Board for the Settlement of Jurisdictional Disputes
are determinative of the matter. However, these decisions do not
relate to situations similar to the instant case and are entitled to
little weight.
The International presidents of the Carpenters and the Lathers
signed an agreement on June 10, 1963, which awarded the work in
issue to the Carpenters. The parties acknowledge that the agree-
ment was never ratified by the Lathers.,' The Carpenters introduced
evidence tending to show that certain employers in the Kankakee
area have nevertheless regarded the agreement as effective and have
designed work in accordance with its terms. However, since the
practice among local contractors was created by the Carpenters' pre-
mature distribution of copies of the agreement, it has no significance
herein.
3. Skills, competence, and training
Members of both Unions have the ability to perform the work in
an efficient and skilled manner. The Lathers maintains that the
work utilizes traditional lather's skills and emphasizes that it has for
some years maintained an on-the-job apprenticeship program which
includes a large amount of this work. The Carpenters plans in a
short time to introduce into its formal school program a course cov-
ering the work. Evidence regarding the amount of training and
experience required in order to attain a level of competence in the
disputed work was contradictory.
4. Efficiency and economy
The Carpenters' Kankakee local has 292 members while the Lath-
ers' local has only 8. However, Carpenters Agent Clatterbuck testi-
fied that only about 12 men in Local 496 were qualified in the in-
stallation of acoustical grid ceilings, and Papineau stated that he
never had trouble getting lathers.
Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors, we shall assign the
work in dispute to the lathers. They are skilled in the performance
of the work and have performed to the satisfaction of Papineau, who
5 The Board has noted that this tentative agreement was abrogated by the Lathers and
gave the agreement no weight in determining the merits in another matter regarding these
two unions Wood, 'Wire, and Metal Lathers International Union, Local 288, AFL-CIO
(Fibergla8 Engineering & Supply Division , Owens-Corning Fibergla8 Corporation), 148
NLRB 1119 In view of the rejection of the so-called June 10 agreement by the general
executive board of the Lathers, we conclude that it never became a binding agreement be-
tween the parties.
NEWBURGH MFG. CO. INC. 763
has expressed his desire to retain them in the work. The assignment
to lathers conforms to Papineau's past practice, is consistent with
that Employer's contract with the Lathers, and is further established
by their traditional performance of the work. We therefore con-
clude that Papineau's assignment of the work to its lathers should
not be disturbed. Accordingly, we shall determine the existing juris-
dictional dispute by deciding that the lathers rather than the car-
penters are entitled to the work. In making this determination, we
are assigning the disputed work to the employees of Papineau who
are represented by the Lathers, but not to the 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
Dispute pursuant to Section 10(k) of the Act:
1. Employees employed as lathers by Orville A. Papineau Spe-
cialty Company, a subcontractor for J. L. Williams & Co., Inc., cur-
rently represented by Wood, Wire & Metal Lathers International
Union, AFL-CIO, are entitled to perform the work of hanging ceil-
ing grids for the construction of the Olin-Mathieson plant at Kano
kakee, Illinois, to include securing of hangers, main T's, and cross-
T's, and the attachment of metal molding which substitutes for cross-T's
around the perimeter of the space.
2. Local No. 496, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is not and has not been entitled, by means
proscribed by Section 8 (b) (4) (D) of the Act, to force or require
Employer Orville A. Papineau Specialty Company or J. L. Williams
& Co., Inc., to assign the above work to carpenters.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local No. 496, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, shall notify the Regional Director
for Region 13, in writing, whether it will or will not 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 lathers.
Newburgh Mfg. Co. Inc.' and Local 156, International Ladies' Gar-
ment Workers Union , AFL-CIO , Petitioner . Case No. 2-RC-
13690. March 17, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended , a hearing was held before Hearing
i The name of the Employer appears as amended at the hearing.
151 NLRB No. 88.