Seattle and King County Carpenters, Etc.

National Labor Relations Board - Board Decisions

Mar 15, 1965

151 N.L.R.B. 700 (N.L.R.B. 1965)

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed to the "package proposal" which Respondent had advanced, thus abandoning,
apparently in exchange for other terms granted by Respondent, its efforts to obtain
restrictions on the Company's rights to make unilateral changes in its warehousing
operations.
The foregoing factors, I find and conclude, demonstrate that the Union clearly
and unmistakably, for the duration of the current contract, bargained away its right
to require the Company to negotiate with the Union concerning the movement of
unit work from St. Louis, and vested in management the right to determine such ques-
tion unilaterally.22 Having the right to unilaterally determine whether or not the
move should be made, it was also absolved from the duty of producing records to
show how the figure of 94.1 cents per hour was arrived at.23 Accordingly I shall
recommend that the complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Union is the collective-bargaining representative of Respondent's employees
engaged in its distribution and warehouse operations in the city of St. Louis, Missouri.
4. By refusing to bargain with the Union concerning the moving of the women's
division from St. Louis to Hannibal, or by refusing to give the Union information as
to how the 94.1-cent-per-hour figure was reached, Respondent did not engage in
unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. The complaint herein should be dismissed.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the Act, I
recommend that the complaint herein be dismissed in its entirety.
=The Union 's contention that it had a promise from Respondent that the latter had
no Intention of moving work out of St. Louis, and for that reason accepted the latter's
proposal , requires no different result . In the first place, I believe the fair inference
from all the evidence is that Respondent was merely saying that no moves were then
in contemplation , and that it was not committing itself not to make such moves in the
future. Otherwise Respondent 's resistance to the Union 's proposals in that regard makes
no sense. Secondly , the rights of the parties must be determined from agreements which
they reached , and not from some obscure factor which motivated the Union 's decision.
This is particularly true In the light of Gruenberg 's testimony that the written contract
contains all agreements reached, and accurately reflects those agreements.
28 With respect to the effect of the moves on the employees in the St . Louis unit, the
testimony shows that the Company has bargained with the Union , and has proceeded
In accordance with the agreements reached with respect thereto.
Seattle and King County Carpenters District and Vicinity, and
Harry L. Carr and Donald E. Johnson , its agents I and Lathers
Local 104, Wood , Wire and Metal Lathers International, AFL-
CIO 2 [Gordon Brown , Inc.']. Case No. 19-CD-94. March 15,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following a charge filed by Lathers
1 The name of the charged Union and its agents appear as amended at the hearing.
P The name of the Charging Union appears as amended at the hearing.
a Herein called the Employer. The Employer was not represented by counsel and took
no formal position at the hearing. One of its owners and officers, however, appeared as a
witness on behalf of Lathers.
151 NLRB No. 77.
SEATTLE AND KING COUNTY CARPENTERS, ETC. 701
Local 104, Wood, Wire and Metal Lathers International, AFL-CIO,
herein called Lathers, alleging that Seattle and King County Car-
penters District and Vicinity, herein called Carpenters, and Harry
L. Carr and Donald E. Johnson, its agents, had violated Section
8(b) (4) (D) of the Act. A hearing was held before Hearing
Officer Robert E. Tillman, on December 21 and 22, 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. Briefs were filed by Lathers and Carpenters which 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
following findings :
A. The business of the Employer
Gordon Brown, Inc., a Washington corporation, is engaged as
a building contractor specializing in lathing, plastering, and installa-
tion of plasterboard partitions in the States of Washington and
Alaska. During the year 1964, the Employer had a gross income
in excess of $500,000 and purchased goods valued in excess of $50,000
from suppliers who received the goods from sources outside the
State of Washington.
The parties agreed, 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 purposes of the Act to assert jurisdic-
tion herein.
B. The labor organizations involved
The parties stipulated and we find that the Lathers and Car-
penters are labor organizations within the meaning of Section 2(5)
of the Act.
C. The work in dispute
Metal studs used in the erection of interior partitions or walls
receive a surface of either plaster or drywall material . The work
in dispute is the erection or installation of metal studs which are
to receive drywall material.
D. The basic facts
The Employer has a subcontract to install the inside partitions
in the Biology Building at the University of Washington campus
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Seattle, Washington. The work consists of laying two tracks,
one affixed to the floor and the other affixed to the ceiling.4 The
metal studs are then installed by inserting them into the tracks
and securing them with a crimping machine. To avoid damage
to the tracks by other workers, it is common practice to lay the
tracks and erect the studs at approximately the same time. There-
after, the wallboard is applied to the metal studs with screws which
penetrate the studs.
In September 1964 5 the Employer assigned the work of installing
the studs to its own employees, who were members of the Lathers.
This assignment was in accord with the Employer's past practice
of using lathers both for the installation of the track and the metal
studs, and with the Employer's understanding of the area practice.
In mid-October two admitted agents of the Carpenters 8 were at
the jobsite and asked job foreman Nelson, who is also a lather, if
the carpenters were installing the metal studs. When told that
lathers were doing it, they asserted that it was carpenters' work
and, according to Nelson's testimony, that Nelson had better get
the lathers off the job or the Carpenters would "pull the carpenters
off." A day or two later a meeting was held at which representatives
of the prime contractor, the Employer, the Lathers, and the Car-
penters were present. At that time Carpenters agents again claimed
the work by virtue of a contract with the Employer. According
to Nelson's testimony and that of Employer Representative Brown,
Carpenters Agent Carr stated that if the lathers did not get off
the job he would pull the carpenters off at all of the prime con-
tractor's projects. The parties discussed the possibility of dividing
the disputed work equally between lathers and carpenters. Car-
penters opposed it, asserting its contract rights to the entire job.
On the following day, and at the prime contractor's request, the
Employer hired two or three carpenters who, together with a like
number of lathers, erected metal studs for a week or two. At the
end of this period the carpenters were assigned to applying wa11-
board to the studs and the lathers continued erecting the metal
studs. The Carpenters was unaware of this switch until the hearing.
Carpenters Agents Johnson and Carr admitted claiming jurisdiction
over the work but denied making any threats.
E. Contentions of the Parties
The Carpenters and its agents deny the existence of reasonable
cause to believe that Section 8(b) (4) (D) was violated, denying
Carpenters makes no claim to this work which is performed by lathers.
Unless otherwise indicated, all dates are in 1964.
e Larry Nicolich and Donald E. Johnson. The parties stipulated that Johnson and
Harry L. Carr were the secretary-treasurer and business agent, respectively, of the
Carpenters.
SEATTLE AND KING COUNTY CARPENTERS, ETC. 703
that any threats were made to pull carpenters off the job and con-
tending further that the Employer was party to a contract with
the Carpenters giving the work in question to carpenters. If the
merits are reached the Carpenters contends on the basis of its con-
tract and area practice that the work in question should be assigned
to carpenters.
The Lathers contends that a jurisdictional dispute does exist herein
because of threats allegedly made by the Carpenters to pull car-
penters off the job if the erection of metal studs was not assigned
to carpenters. The Lathers further contends that the erection of
metal studs is properly its work and its contract with the Employer
so provides.
F. 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. In a Section
10(k) proceeding we need not resolve any conflicts in testimony,?
nor are we required to find that the Carpenters in fact engaged in
the unlawful conduct alleged. All we need determine in this pro-
ceeding is that there is reasonable cause to believe that the Car-
penters engaged in such conduct.8 On the basis of the entire record
we find that there is reasonable cause to believe that a violation
has occurred and that the dispute is properly before the Board for
determination."
G. Merits of the dispute
Section 10(k) of the Act requires the Board to make an affiramtive
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. Certification; contract
Neither the Lathers nor the Carpenters has been certified by the
Board with respect to any employee involved in the instant pro-
ceeding.
The Lathers has a written contract with the Employer which
recognizes the jurisdiction of the Lathers as set forth in its Inter-
national constitution. The Board has considered other Lathers
contracts containing substantially the identical language as con-
7 Local 138 , et al., International Union of Operating Engineers, AFL-CIO (Cafasso
Lathing & Plastering, Inc ), 149 NLRB 156 and footnote 5.
s Local Union 825, International Union of Operating Engineers, AFL-CIO (Nichols
Electric Company), 137 NLRB 1425, 1429.
O Neither party contends that an agreed-upon method for the voluntary adjustment of
this dispute is available.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained in the instant Lathers contract, and has held that it did not
specifically assign to the lathers work similar to that here in
dispute.'°
The Carpenters has an agreement effective from April 1, 1962, to
March 31, 1965, with Northwest Drywall Contractors Association,
Inc., of which the Employers is a member and was a member at
the time contract was signed. Incorporated by reference in this
agreement is a contract dated January 12, 1961, between the Car-
penters' parent organization and the Gypsum Drywall Contractors
International. The two agreements when read together are patently
ambiguous,ll and do not unequivocally assign the specific work to
the Carpenters. Carpenters also relies upon its contract with the
regional chapter of the Associated General Contractors of America,
of which the prime contractor is a member, and to which the Em-
ployer is bound by virtue of its subcontract. This contract contains
the identical provision as article II, section 1 of the Northwest Dry-
wall Contractors agreement, supra, and accordingly, is not an as-
signment of the disputed work.
2. Company, area, and industry practice
Although both the Lathers and the Carpenters introduced evidence
of area and industry practice to support their respective positions,,
the results of their efforts are inconclusive. It is clear, however, that
the Employer has never employed carpenters, and has used lathers
exclusively for installing metal studs.
3. Efficiency of operation
Both disputants claim skill and efficiency in erecting metal studs.
However, the Employer's Job Foreman Nelson, a lather, testified
that lathers perform the work more efficiently and more economi-
10 Local 964 , United Brotherhood of Carpenters and Joiners of America ( Robert A.
Carleton, d/b/a Carleton Brothers Company ), 141 NLRB 1138, 1141, and footnote 3;
Lathers Local Union No . 62, Wood, Wire & Metal Lathers International, AFL-CIO
( Belou & Co. Accoustics, Inc.), 150 NLRB 21.
"Article II of the Northwest Drywall Contractors Association agreement provides as
follows •
Section 1 The work covered by this Agreement shall be that which is recognized)
as properly coming under the jurisdiction of the United Brotherhood of Carpenters
and Joiners of America.
Section 2 . . . . The Brotherhood of Carpenters recognized [ sic] the jurisdiction,
of other crafts and other contractors over walls and ceilings other than drywall
such as lath to receive plaster and are only asserting their recognized right in,
conjunction with the employer to do all drywall work.
Article I of The Gypsum Drywall Contractors International agreement purports to rec-
ognize the Carpenters ' jurisdictional claims as follows, inter alia:
3. All work in connection with the installation , erection and /or application of
all materials and component parts of walls and partitions regardless of their
material composition or method or manner of their installation , attachment or con-
nection, including but not limited to the following items: all floor and ceiling runners.
studs . . , and all other necessary or related work in connection therewith
SEATTLE AND KING COUNTY CARPENTERS, ETC. 705
cally. He estimated that it costs the Employer 20 percent more
to use carpenters instead of lathers to install the studs. The Em-
ployer's president, Brown, estimated the cost differential at 17 percent.
The Carpenters does not claim the right to install the tracks, which
is done by lathers, nor even the erection of all metal studs. It
demands only the work of erecting such studs as will receive a
drywall covering. The installation of tracks and studs is precisely
the same whether the final covering is wet or dry wall material.
Performance of the disputed work by the carpenters would,
therefore, necessitate the division of the entire operation between
two craft groups with one installing all the tracks and all the studs
which are to receive a plaster finish, and the other installing only
the studs to which drywall material is to be attached. Clearly,
the installation of the tracks and metal studs is performed more
efficiently when done as a continuous, integrated operation by a
single craft group. Furthermore, the disputed work is performed
only intermittently, as required, by lathers who, when not so
engaged, are otherwise employed by the Employer in the exercise
of functions not involved in this dispute. The Employer's assign-
ment of the disputed work to lathers is therefore consistent with
efficiency of operation in the erection of interior partitions. The fact
that Carpenters operates an apprentice training school where in-
stallation of metal studs is taught, while the Lathers engage in
on-the-job apprentice training, is immaterial here.
4. 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 that, since both the Lathers and Carpenters are in "non-
compliance," the Board will not entertain further disputes between
them. There has thus been no determination by, nor submission to,
the National Joint Board of this dispute. Accordingly, the past
decisions of the Joint Board, which have assigned the work variously
to Carpenters and Lathers, are not determinative.12
CONCLUSIONS
Upon consideration of all pertinent factors in the entire record,
we shall assign the work in dispute to the lathers. This assign-
ment conforms to the Employer's consistent past practice and is
not inconsistent with area and local industry practice. In our view,
the efficiency and economy with which the lathers may accomplish
the integrated task of preparing partitions for final covering in a
'Lathers Local Union No. 62, Wood, Wire cA Metal Lathers International, AFL-CIO
( Below & Co. Accoustics, Inc.), supra.
783-133-66-vol. 151-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
single sequential operation demonstrates the superior claim of the
lathers to the disputed work. Under these circumstances, we con-
clude that the Employer's assignment of the work to the lathers
should not be disturbed. We shall, accordingly, determine the exist-
ing jurisdictional dispute by deciding that lathers, rather than car-
penters, are entitled to the work in dispute. In making this determi-
nation, we are assigning the disputed work to the employees of the
Employer 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
the proceeding, the Board makes the following Determination of
Dispute pursuant to Section 10(k) of the Act :
1. Lathers employed by Gordon Brown, Inc., who are represented
by Lathers Local 104, Wood, Wire and Metal Lathers International,
AFL-CIO, are entitled to perform the work of erecting metal studs
to receive wallboard on interior partitions in the Biology Building
on the campus of the University of Washington in Seattle, Wash-
ington.
2. Seattle and King County Carpenters District Council and
Vicinity 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 carpenters.
3. Within 10 days from the date of this Decision and Determi-
nation of Dispute, the Respondent, Seattle and King County Car-
penters District Council and Vicinity, shall notify the Regional
Director for Region 19, in writing, 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.
Townley Metal and Hardware Company and Teamsters Local
Union No. 541, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Petitioner. Case No. 17-RC-4588. March 15, 1965
DECISION ON REVIEW
On October 29, 1964, the Regional Director for Region 17 issued
a Decision and Direction of Election in the above-entitled proceed-
ing, finding appropriate a unit of all warehouse employees at the
Employer's Kansas City, Missouri, warehouse facilities, including
truckdrivers and printshop employees, but excluding office clerical
employees, salesmen, professional employees, guards, and supervisors
151 NLRB No. 67.