Omaha Carpenters District Council

National Labor Relations Board - Board Decisions

Jun 8, 1965

152 N.L.R.B. 1293 (N.L.R.B. 1965)

OMAHA CARPENTERS DISTRICT COUNCIL 1293
whether they 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 carpenters rather than lathers.
Omaha Carpenters District Council and Radachi Co. Case No.
17-CD-67. June 8, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, as amendeed, following a charge filed by Radachi Co.,
herein called the Employer, alleging that the Omaha Carpenters Dis-
trict, herein called Respondent, 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 it rather
than to those represented by Wood, Wire & Metal Lathers Interna-
tional Union, Local No. 136, AFL-CIO, herein referred to as the
Lathers. A hearing was held before Hearing Officer Vincent M. Helm
on February 4 to 6, 1965. All parties appeared at the hearing and
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. Briefs were filed by Respondent and the
Lathers, and have been duly considered.
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 proceeding, the Board makes the fol-
lowing findings:
A. The business of the Employer
The parties stipulated that the Employer, a Nebraska corporation,
is engaged in the business of drywall installation and acoustical con-
struction; that it annually performs services valued in excess of $50,-
000 outside the State of Nebraska ; and that it annually purchases
goods, materials, or supplies valued in excess of $50,000 from suppliers
who receive these goods directly from States outside the State of
Nebraska. It appears from the record that in fact the Employer is
primarily in lathing and plastering work, and also erects suspended
ceilings. The parties agree, and we find, that the Employer is engaged
in commerce within the meaning of the Act.
We further find that it will effectuate the purposes of the Act to
assert jurisdiction herein.
152 NLRB No. 128.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The labor organizations involved
The parties stipulated, and we find, that Respondent and the Lath-
ers 1 are labor organizations within the meaning of Section 2 (5) of
the Act.
C. The work in dispute
There are two basic types of work which gave rise to the subject
dispute :
1. The attachment of horizontal metal tracks to floors and ceilings,
the erection of metal studs vertically within the tracks, and the inser-
tion of bracing metal through the studs. While such studs may receive
a surface of a variety of materials, those here involved received a dry-
wall finish.
2. The erection of suspended ceilings. This work involves the instal-
lation of a hanger (a wire which comes down vertically from the floor
above) ; the suspension of a 11 -inch channel iron (also referred to as
a black iron or carrying bar) by attaching it to the hanger; and the
attachment of a screw channel (also known as a hat or furring channel
or bar), which also runs horizontally, to the 11/2-inch channel iron.
While various materials can be attached to the screw channel, those
here involved received a drywall finish.
D. The basic facts
On April 13, 1964,2 the Employer, a subcontractor, entered into a
contract with Peter Kiewit Sons' Co., a general contractor, for the per-
formance of work, including the erection of metal studs, the installa-
tion of a ceiling suspension system, and the application of a drywall
interior finish, at the Mockingbird School, herein called the M-School,
in Ralston, Nebraska. In mid-September, prior to the commencement
of this project, Olson and Deseck, Respondent's assistant business
agents, came to the office of Joe Radachi, herein called Radachi, the
Employer's operating head, and asked him to assign the studwork at
two Kings Restaurant projects then underway and at the M-School to
Respondent.3 Radachi made no response to this request.'
1 The stipulation referred to the Lathers International, but there is no contention that
its Local No . 136, here involved, is not likewise a labor organization within the meaning
of the Act
9 unless otherwise specified, all events occurred in 1964
3On April 3, Respondent had written the Employer with regaid to the fact that it
had assigned lathers to erect metal studding on a Sears project, and stated that "to
prevent future misunderstandings" between the Lathers and Respondent, it was enclosing
copies of recent "Jurisdictional Board" decisions regarding the erection of metal studding
to receive sheet rock or drywall, and that it would be appreciated if the Employer "would
be guided accordingly on any future work " Respondent received no response to this letter
4 On October 2, the Carpenters International, via telegram, requested that the Employer
reassign the work of installing floor and ceiling tracks, erecting studs, and applying dry-
wall at one of these two restaurant projects to carpenters and added that the failure to
do so "could result in complications for which you would be held entirely responsible "
The Employer did not answer this telegram The Employer thereafter assigned carpenters
to the work of erecting the studs and the suspended ceiling at the other restaurant project
and Radachi and Moore, his superintendent , testified that their work was unsatisfactory.
OMAHA CARPENTERS DISTRICT COUNCIL 1295
Toward the end of September, the Employer assigned the stud and
ceiling work on the M-School job to lathers on his payroll, and they
worked at the site during the first 2 weeks of October. During the
month of October, Bastemeyer, Respondent's president and business
agent, telephoned Moore, the Employer's superintendent, and insisted
that the Employer use carpenters "on this phase of work"; he later
rephrased his statement to indicate that Respondent would "prefer" it
if carpenters were employed. According to Moore, Bastemeyer did
not describe the work he claimed. Bastemeyer testified that he had
reference to the erection of studs, that he did not remember whether
he also referred to the suspended ceiling work, but that Respondent
claimed both types of work.
In mid-October, Deseck telephoned Radachi and asked him to let
carpenters erect the studding. Radachi refused. About the same time,
the lathers, having completed the first phase of their work, left the job,
and carpenters on the Employer's payroll commenced the work of
applying drywall to the studs. On Friday, October 30, the lathers
returned to the jobsite. This was the first time that the Employer's
lathers and carpenters were at the site together. On the afternoon of
October 30, Kiewit's carpenters, who were also working on the project,
walked off the job.
They again left the job about 8:30 a.m. the following Monday,
November 2. When this occurred, the Employer's drywall foreman,
in the presence of the two carpenters then working for the Employer,
asked Moore what to do, and Moore advised him to call his union. The
foreman left for about 5 or 10 minutes; when he returned, he told
Moore he was told to take his men off the job and go to the union hall.
The foreman and the two carpenters then left the job. According to
Radachi, the carpenters told him they left the site because lathers were
erecting the studs.
The lathers stayed on the job through November 3, and then left
because they had completed another phase of their work. On Novem-
ber 4 the carpenters returned to work. Radachi testified that about
November 5, Kiewit's representatives asked him to keep lathers off the
job until Kiewit could catch up with its carpentry work, and Radachi
agreed to do so.
E. Contentions of the parties
Respondent contends that the instant case does not involve a valid
jurisdictional dispute cognizable by the Board because the Employer
is bound by contract with Respondent to submit the dispute to the
National Joint Board. It further argues that past Joint Board deci-
sions have been in favor of awarding the disputed work to carpenters;
that carpenters have historically performed such work in the area and
in the industry, and are more skilled in the work; that it is economically
unsound for the Employer or any other employer to assign the work to
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lathers; and that lathers are incapable of manning this or other jobs in
the area because their membership in the jurisdictional area involved
is too small while that of Respondent is adequate. The Lathers con-
tend that this case does involve a valid jurisdictional dispute; that
because both unions were in "noncompliance"' with the rules and regu-
lations of the Joint Board, an agreed-upon method for adjusting the
dispute did not exist; that for many years, decisions and agreements
in the building and construction industry have awarded the work in
dispute to lathers; that the work is related to tasks traditionally per-
formed by lathers; that for reasons of economy, efficiency of operation,
skill, and Employer and area practice, the work should be assigned
to lathers; and that Respondent is seeking to expand work opportuni-
ties for its members without a substantial basis for such a claim.5
Furthermore, the Lathers argues that because Respondent has pursued
this claim against the Employer and other contractors on numerous
jobs in the Omaha area, resulting in disputes on many jobs, the Board
should make a determination for the Omaha area.
F. Applicability of the statute
The charge alleges a violation of Section 8 (b) (4) (D ) of the Act. In
a 10 (k ) proceeding we need not resolve any conflicts in testimony ,8 nor
are we required to find that Respondent in fact engaged in the unlaw-
ful conduct alleged. All we need determine in this proceeding is that
there is reasonable cause to believe that Respondent engaged in such
conduct .7 On the basis of the entire record, we find that there is rea-
sonable cause to believe that a violation has occurred and that the dis-
pute is properly before the Board for determination.8
G. 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 :
5 Respondent 's claims appear to be an expansion of those it and other affiliates of the
Carpenters International have made in the past Thus , they have generally claimed
studwork only where a drywall finish was to be applied. While the studs here involved
were to receive such a finish, representatives of Respondent testified that they now claim
the studwork regardless of the type of finish to be applied.
Furthermore with regard to the suspended ceiling work, it appears that Respondent has
heretofore sought only the work of erecting the screw channel ; in this proceeding, Respond-
ent lays claim to the work of erecting the 11/2-inch channel iron and the hangers as well.
B Locals 138 , et at. , International Union of Operating Engineers, AFL-CIO ( Cafasso
Lathing & Plastering , Inc.), 149 NLRB 156, footnote 5.
7 Seattle and King County Carpenters District and Vicinity , et at. ( Gordon Brown,
Inc.), 151 NLRB 700, footnote 8.
8 In addition , as more fully discussed below , both unions were in noncompliance with
the rules and regulations of the National Joint Board at the time of the dispute, and
that Board would, therefore , not resolve the matter on its merits Accordingly , there was
no agreed-upon method of settlement at that time Lathers Local Union No. 62, Wood,
Wire & Metal Lathers International Union, AFL-CIO (Belou & Co Accoustics , Inc.), 150
NLRB 21.
OMAHA CARPENTERS DISTRICT COUNCIL 1297
1. Certification ; collective-bargaining contracts
Neither the Lathers nor Respondent has been certified by the Board
with respect to any employees involved in the instant proceeding.
The Employer has been a member of the Nebraska Master Plasterers
Association of Omaha, Nebraska, for 10 to 12 years, during all of which
time the Association has been under contract with the Lathers. The
current agreement recognizes the jurisdiction of the Lathers as set
forth in the International constitution. The Board has considered
other Lathers' contracts containing substantially the same language as
contained in this one and has held that they did not specifically assign
the studwork to lathers.9 We likewise find that this contract does not
make such an assignment, and we further find that it does not specifi-
cally assign the work of erecting suspended ceilings to lathers.10
BLocal 964, United Brotherhood of Carpenteis, and Joiners of America, AFL-CIO
(Robert A. W. Carleton, d/b/a Carleton Brothels Company), 141 NLRB 1138, 1141, foot-
note 3; Lathers Local Union No. 62, Wood, Ware it Metal Lathers International, AFL-
CIO (Belou it Co Accoustics, Inc ), supra
io Furthermore, it is not clear whether any provisions of the Lathers' International
constitution relating to its trade jurisdiction were a part of the Employei's Contract at
the time of the dispute herein, and, if so, which provisions were applicable. The Em-
ployer's contract with the Lathers, executed November 29, 1902, and effective until May 31,
1905, provides for the incorporation of the Latheis' rules which affect the Employer's
working conditions and/or costs, but states that in the event any of the Union's work-
ing rules are altered or amended during the term of the contract, "they will not be con-
sidered a part thereof." It is not clear whether this latter phrase is intended to mean that
in the event of alteration or amendment, the original provision will no longer be part of
the agreement, or that the amendment will not be incorporated
From November 1, 1961, until September 14-17, 1964, the Lathers' International con-
stitution included the following within its "Trade Jurisdiction":
Section 3a. . . . erecting and installing of all light iron construction, furring; mak-
ing and erecting . . . hangers ; . .
b. All carrying bars, purlins and furring regardless of size, light iron and metal
furring of all descriptions, such as rods, channels, flat iron, Nailock, Screwlock,
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 acousti-
cal materials.
c. The nailing, tying, and fastening of . . . wire of all descriptions as well as
the placing of all hangers and all inserts used for the purpose of supporting sus-
pended ceilings of any of the above types of light ion and metal furring which
receive lath and plastic or acoustical materials . . .
At Its September 14 to 17 convention , the International amended sections 3a and b
as follows:
3a. . . . erecting , constructing , installing and completing of all light iron construc-
tion, furring ; making and erecting . . . hangers .. .
3b. All carrying bars, purlins and furring, regardless of size ; light iron and metal
furring of all descriptions such as rods, channels, flat iron, nailock, screw lock,
Pomeroy, T-Bar, H-Bar, Z-Bar, metal splines, and other ceiling bars or systems for
the receipt of metal lath, rock lath, gypsum board, acoustical tile or any other mate-
rials and all light iron and metal studs such as Stran Steel, Penn Metal, Soule,
Truscon, or other trade names of metal studs, and all other types of light iron or
metal studs, no matter what the manufacturer, when such studs are to receive a dry
wall finish, such as gypsum board, wall board, wooden paneling, etc, or when such
studs are to receive metal lath, rock lath or other material for the application of
plaster or other sprayed on wet material; and all other light iron furring erected to
receive lath and plastic or acoustic materials.
7 8 9-7 3 0-60-v o f 15 2-8 3
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer had not been party to any contract with Respondent
until February 19, 1964, at which time it signed a written agreement
to be bound by the contract between Respondent and the Associated
General Contractors Employers Association of Omaha, Nebraska, Inc.,
and the Home Builders Employers Association. This contract pro-
vides for the incorporation of Respondent's rules which affect the
Employer's working conditions and/or costs. In this connection,
Respondent relies on a description of trade jurisdiction contained in a
booklet entitled "Jurisdictional Claims" 11 issued by its International.
Assuming that the International's jurisdictional claims constitute
"rules" within the meaning of the Employer's contract with Respond-
ent, we do not find that it specifically assigns to Respondent either the
work of erecting studs or suspended ceilings.
2. Agreements between the unions
The Lathers relies on a 1903 agreement contained in the Green Book
of "Agreements and Decisions Rendered Affecting the Building Indus-
try." This agreement, entered into between the Carpenters and Lath-
ers Internationals, provided that pending the action of their conven-
tion, the Carpenters International would not assert jurisdiction over
any ironwork including iron or wire lathing, studding, or any other
exclusively ironwork claimed by the Lathers International; while that
organization agreed not to assert jurisdiction over any woodwork,
including wooden studding or furring, or any other carpentry or wood-
work, except wooden lath to receive plastic material. We have, how-
ever , found in prior cases 12 that the Carpenters International never
ratified this agreement and refused, in the past, to abide by it. Accord-
ingly, we are unable to give any weight to this factor in determining
the assignment of the work in dispute herein.
On June 10, 1963, the presidents of the two Internationals executed
an agreement , providing, inter aZia, for an award of the work of install-
ing the 11/2-inch channel iron, the hangers, and the cross-furring for
suspended ceilings to Lathers. On March 26,1964, the Lathers advised
the Respondent that its Executive Board had voted against approval
of the "proposed" agreement. Thereafter, the Lathers International
advised its locals and district councils to abide by the agreement only
in localities where the Carpenters' unions did so. It appears that sub-
sequently , contractors in the area did not adhere to the terms of the
11 This booklet includes within the definition of the Carpenters' trade jurisdiction,
Erection of all wood, metal, plastic, and composition partitions ; cutting and applying
of all furring acoustical suspended ceilings in its entirety . . . .
11 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 690 (The
Walter Corporation ), 151 NLRB 741, Local 964 , United Brotherhood of Carpenters
and Joiners of America, AFL-CIO ( Robert A. W Carleton, d/b/a Carleton Brothers
Company ), supra , at pp 1142-1143.
OMAHA CARPENTERS DISTRICT COUNCIL 1299
June 10, 1963, agreement. The Board has previously considered this
agreement and has found that it was not entitled to any weight.13
3. Company, area, and industry practice
Radachi, who has been in business for 18 years, testified that with
the exception of the assignment of carpenters to the stud and suspended
ceiling work on the Kings Restaurant job in October 1964, referred to
above, he has uniformly assigned such work to the lathers on his pay-
roll. While the Employer also employs carpenters, their duties are
apparently confined to the application of drywall and the erection of
acoustical ceilings.
It appears that traditionally lathers in the area have done the stud-
work where wet finish jobs were involved. With the increasing use of
drywall finish, carpenters have laid claim to the studwork where a dry-
wall finish is involved .14 However, the installation of tracks, studs,
and bracing is precisely the same whether the final covering is a wet or
dry material. While Respondent herein lays claim to the erection of
all studs regardless of the final covering, it cites no compelling reasons
why this work should be awarded to carpenters rather than to lathers,
who have traditionally performed it.
With regard to the suspended ceiling work, area and industry prac-
tice are not clear. Respondent's representative testified, however, that
until July 1, 1964, Respondent had limited its claim to the work of
erecting the screw channel. As the work of erecting the 11/-inch chan-
nel iron, the hangers, and the screw channel is most efficiently per-
formed as an integrated operation, and as the lathers have traditionally
performed the work of erecting the first two items, we find no merit
to the Respondent's claim that the entire operation should now be
awarded to its members.
4. Employer's assignment and efficiency of operation
As indicated above, the Employer assigned the installation of the
disputed work to lathers.11 The Employer is primarily a plastering
subcontractor, and has only been engaged in drywall work to any con-
13 Local No 496 , United Brotherhood of Carpenters , etc (J. L Williams d Co, Inc ),
151 NLRB 758 , Wood , Wire, and Metal Lathers International Union, Local No. 238,
AFL-CIO ( Fiberglas Engineering & Supply Division , Owens - Corning Fiberglas Corpora-
tion ), 148 NLRB 1119
14 The Lathers introduced testimony indicating that employers in the area who are
primarily lathing and plastering contractors , such as the Employer , have generally assigned
the studwork to lathers , while Respondent introduced evidence indicating that drywall
contractors have generally assigned it to carpenters It appears , moreover, that the
drywall contractors do a significant amount of residential work involving wooden studs,
an area which has traditionally been recognized as within the carpenters ' 7urisdirtion.
All of the Employer's work is commercial and involves the use of steel studding
15 Radachi further testified that his assignment of the work conformed to the architec-
tural specification The Board has in the past given weight to this factor United
Brotherhood of Carpenters and Joiners of America, AFL-CIO , Local 1622 ( 0. R Karst),
139 NLRB 591 , 597 ; of United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, Local 690 (The Walter Corporation ), supra, at footnote 3.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
siderable extent since about 1960 or 1962. Of the jobs performed by
the Employer over the past 12 years, 90 percent were plastering jobs;
for the past 2 to 3 years about 25 percent of the Employer's work has
been drywall. Radachi, who has always employed lathers to do the
stud and ceiling work for his plastering jobs, testified that for reasons
of efficiency and economy, he likewise assigned the work to them on
his drywall jobs. He further testified that the disputed work is per-
formed only intermittently, as required, by lathers who, when not so
engaged, are employed by the Employer in the exercise of other func-
tions. The Employer's assignment of the disputed work to lathers is
therefore consistent with efficiency of operation."'-
Skills, Competence, and Training
There was testimony by representatives of both unions that their
apprenticeship training included instruction in the work in dispute.
It appears that members of both unions have the ability to perform
the work in an efficient and skilled manner.
Action of the Joint Board
Both unions cite numerous decisions of the National Joint Board to
support their claims to the disputed work. The record, however, dis-
closed that at the time the instant dispute arose both unions were in
"noncompliance," and the Board would not have entertained the sub-
ject dispute then.17 There has thus been no determination by, nor sub-
mission to, the National Joint Board of this dispute. Accordingly, the
past decisions of the Joint Board, which have assigned the work vari-
ously to Carpenters and Lathers, are not determinative.18
Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors in the entire record, we
shall assign the work in dispute to the lathers. They are as skilled in
the performance of the work as the carpenters who compete for it, and
they have performed it to the satisfaction of the Employer, who desires
to retain them on the job. This assignment conforms to the Employ-
er's consistent past practice, and the efficiency with which lathers may
accomplish this job establishes a superior claim to the disputed work.
ie Respondent contends that the work herein should not be awarded to members of the
Lathers because their membership in the area is only 37 while Respondent 's membership is
about 1,800. However, as our determination herein is limited to the subject Employer,
who assigned the work to lathers on his payroll and did not testify as to any difficulty
in securing sufficient lathers for his needs , we give no weight to this factor herein.
i7 We have been administratively advised that subsequent to the hearing herein and
the submission to briefs , both unions have come into compliance with the National Joint
Board. We therefore find no warrant for making an award of work for the entire Omaha
,area, as requested by the Lathers , as future disputes, if any, may be referred to, and
settled by, the Joint Board.
-Seattle and King County Carpenters District and Vicinity et al (Gordon Brown,
Inc.), supra.
LOUISIANA MANUFACTURING COMPANY 1301
We therefore conclude that the Employer's assignment of the work to,
lathers should not be disturbed. We shall, accordingly, determine the
jurisdictional 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 who are represented
by the Lathers but not to that Union or its members. Our present
determination is limited to the particular controversy which gave rise
to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10 (k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings and the entire
record in this proceeding, the National Labor Relations Board makes
the following determination of dispute.
1. Employees employed as lathers by Radachi Co. at Omaha,,
Nebraska, currently represented by Wood, Wire & Metal Lathers;
International Union, Local No. 136, AFL-CIO, are entitled to perform
the work of installing floor and ceiling tracks, studs, and bracing to
receive drywall material on interior partitions, and of erecting 11/2-
inch channel iron, hangers, and screw channel for suspended ceilings at
the Mockingbird School in Ralston, Nebraska.
2. Omaha Carpenters District Council is not and has not been
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, Omaha Carpenters District Council shall notify the
Regional Director for Region 17, 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 carpenters
rather than lathers.
Louisiana Manufacturing Company and District 50, United Mine
Workers of America
Louisiana Manufacturing Company and Richard J. Owens
Louisiana Manufacturing Company and District No. 50, United
Mine Workers of America, Petitioner . Cases Nos. 14-CA-3294,
14-CA-3294-2, 14-CA-3479, and 14-RC-4786. June 8, 1965
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On February 1, 1965, Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respondent
152 NLRB No. 131.