United Brothd. of Carpenters, Local 7

National Labor Relations Board - Board Decisions

Nov 21, 1969

179 N.L.R.B. 672 (N.L.R.B. 1969)

672 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
United , Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local No. 7 and Donald
Frantz Concrete Construction, Inc. and Laborers
Union Local No. 563, Laborers International
Union , of - North America, AFL-CIO. Case
18-CD-81 '
November 21, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act , as amended,
following a charge filed by Donald Frantz Concrete
Construction , Inc., herein called the Employer,
alleging that United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, Local No. 7, herein
called Local 7 or Respondent , had violated Section
8(b)(4)(D ) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign the work in dispute
to Local 7 rather than to employees of the
Employer represented by Laborers Union Local No.
563, Laborers International Union of North
America, AFL-CIO, herein called Local 563.
Pursuant to notice, a hearing was held before
Hearing Officer Donald A. Romano on May 21 and
22, 1969 All parties appearing at the hearing were
afforded full opportunity to be heard, to examine
and cross -examine witnesses, and to adduce evidence
bearing on the issues .' Thereafter , the Employer
filed a brief.
On June 30 , 1969, the Regional Director filed a
motion with the National Labor Relations Board to
remand the proceeding to him so that he could
quash the notice of hearing and dismiss the charge.'
Thereafter , the Employer stated its opposition to the
motion. On August 19, 1969 , the Board issued a
notice to show cause why the notice of hearing
should not be quashed by the Board on the ground
that all parties had agreed to be bound by a
determination of the National Joint Board for
Settlement of Jurisdictional Disputes in the Building
and Construction Industry, herein called the Joint
Board . Thereafter , the Employer filed a response
thereto , and the Respondent filed a reply to the
Employer's response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Bricklayers and Stone Masons Local No 2 was served with a
Notice of Hearing but did not enter an appearance There is no evidence
that it is seeking the work in dispute
For the reasons set forth herein, this motion is denied
The rulings 'of the Hearing Officer made at the
hearing are free ,from prejudicial error Accordingly,
they are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings'.-1.
THE BUSINESS OF THE COMPANY
Donald Frantz Concrete Construction, Inc. is a
Minnesota corporation engaged in masonry and
concrete work in the construction industry. The
record reveals that' during the past year the
Employer purchased goods and materials valued in
excess of $50,000 which were shipped directly from
points outside Minnesota for use within Minnesota.
We find that the Employer is engaged in commerce
within the meaning of the Act, and that it will
effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 7
and Local 563 are labor organizations within the
meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer, on July 10, 1968, entered into a
subcontract with the First Florida Corporation of
Miami, a general contractor, to perform masonry
work on a research laboratory building being
constructed for the Pillsbury Company. The
contract covers the erection of all masonry walls on
a building whose height is 42 feet. The record
establishes that to build the walls up to the height of
42 feet,. the scaffolding must be 46 feet high. The
Employer assigned the work of erecting the
!scaffolding to laborers, who are members of Local
563.
Fred LeMieux, the Employer's laborer foreman,
!testified that on March 27, 1969, he was told by
James Hill, Respondent Local 7's steward on the
jobsite, that if laborers continued to work on the
scaffolding, he would call all the carpenters out and
picket the job. Donald Frantz testified that on
March 28, 1969, Stan Fudro, Local 7's business
agent, informed him that any work involving
scaffolding in excess of 14 feet in height belonged to
,members of Local 7 and that if Frantz continued to
assign such work to members of Local 563, he
would order all the carpenters off the job. Although
the Employer does not employ carpenters, other
subcontractors and the general contractor, First
Florida Corporation of Miami, had carpenters in
,their employ. Subsequently, there was such a work
stoppage and the carpenters remained away from
'the jobsite for 2 days, April 3 and 4, 1969, but
thereafter returned to work and were working at the
time of the hearing.
179 NLRB No 110
UNITED BROTHD . OF CARPENTERS, LOCAL :7
B. The Work in Dispute
The work in dispute is the erection and
dismantling of tubular steel scaffolding where the
height of the scaffolding exceeds 14 feet at the
aforementioned building.
C. The Contentions of the Parties
Respondent did not. file a brief with the Board,
but on the record it contended that it has neither
threatened nor coerced the Employer within the
meaning of Section , 8(b)(4)(D) of the Act.
Respondent further contended on the record and in
its reply, to the 'Employer's response to Notice to
Show Cause, that, at the time of the dispute and at
the time the charge was filed; all parties were bound
by a voluntary method of adjustment to submit the
jurisdictional dispute to the Joint Board.
Accordingly, it asserts that the Board is precluded
from making a work determination under Section
10(k) of the Act. Alternatively, Respondent on the
record argued that the disputed work should be
awarded to employees represented by it in view of a
1920 Joint Board decision awarding similar disputed
work to Carpenters and because such assignment is
supported by the Carpenters' superior training, skill,
and experience, and by area practice and safety
considerations.'
The Employer contends that Respondent did
engage in unlawful threats and coercion, and that it
is not bound by the Joint Board award because it
did not participate in the Joint Board proceeding. It
asserts that at no time were all the parties in
agreement on a method of settlement, for the
business representative of Local 563 testified that his
Union was in noncompliance with determinations of
the Joint Board and the Employer has no agreement
with Respondent Local 7. With respect to its
commitment to abide by the terms and conditions of
the Builders Division Agreement between Local 563
and the Associated General Contractors, herein
called the AGC, the Employer states that a new
agreement was entered into on May 5, 1969, which
was effective at the time of the hearing herein on
May 21 and 22, 1969, and at the time of the Joint
Board hearing on June 5, 1969, and this agreement
deletes all. reference to the submission of
jurisdictional disputes to the Joint Board. Finally,
the Employer contends that the disputed work
should properly be awarded to members of Local
563 in view of- (a) the coverage thereof accorded by
the current agreement between -the, Masonry
Contractors Association of America, in which the
Employer holds membership, and the Laborers'
International Association of America, with which
Local 563 is affiliated; (b) considerations of
efficiency, economy and safety, and (c) area and
industry practice
673
Local 563 did not file a brief,with,the Board,, but
on the record it asserted, that its: members are
entitled to the work as they have -been performing
this work in this area for many years and'.are fully
qualified' In addition,- Local 563, contends that the
1920 award relied on by Local 7 involved the
erection of wooden scaffolding and has no
applicability to tubular steel scaffolding.
D. Applicability of the Statute
Before the Board' - may proceed with , a
determination of the dispute pursuant' to Section
10(k) of the Act, it must' be satisfied that there is
reasonable cause to believe that Section 8(b)(4)(D)
has been violated As set forth previously, Frantz
and LeMieux testified that Respondent threatened
to induce carpenters employed by. First Florida
Corporation of Miami, the general contractor, to
walk off the Pillsbury jobsite unless the Employer
assigned' the erection and dismantling of all
scaffolding on the jobsite to carpenters rather than
to its employees represented by Local 563. Their
testimony was contradicted by' that of Fudro and
Hill. Nevertheless, ,the Board is not charged with
finding that a violation did in fact occur, but only
that reasonable cause exists to find such a violation.
Without ruling on the credibility of the testimony in
issue, we conclude that there is reasonable cause for
believing that a violation of Section 8(b)(4)(D) has
occurred.'
In the circumstances of this case, we are not
satisfied that at times here material all parties have
-agreed , to be bound by determinations 'of work
jurisdiction made' by the Joint Board. Under the
Masonry Contractors Association contract, the
Employer is bound to conform to the area local
agreement The Employer, on June 6, .1966, agreed
to abide by the terms and conditions of the contract
which Local 563 had with,the AGC. Although that
contract provided 'for' the , submission of
jurisdictional disputes to the Joint Board, it expired
April' 30, 1969, before the date of the hearing in this
proceeding and before the dispute was submitted by
Respondent to the Joint Board. The new contract
between the AGC and Local 563, which took effect
on May 5, 1969, does not provide for the submission
of jurisdictional disputes, to the Joint Board.
Moreover, the Employer was not a participant' in
the Joint Board proceeding. Thus, at all times' when
an agreed-upon method for settlement was urged, no
binding commitment to abide by determinations of
the Joint Board was in effect.4 Under these
circumstances, we find that it will effectuate the
policies underlying Sections 10(k) and 8(b)(4)(D) for
us to determine 'the merits of the dispute
Accordingly, we find that the instant dispute is
appropriate for resolution under Section 10(k) of the
'Locals 138, 138A, 138B, 138C, and 138D, International Union of
Operating Engineers , AFL-CIO (Caffasso Lathing and Plastering, Inc ),
149 NLRB 156, 158, 159
in light of the questions that have arisen concerning the continued
.674 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
Act.
On the basis of the entire record , we find that
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D ) has occurred and that the
dispute is - properly before the Board for
determination.
E. 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.'
1. Collective-bargaining agreement
The Employer is a member of the Masonry
Contractors Association of America, Inc., which has
a current collective-bargaining agreement with the
Laborers' International ' Association of America,
with which Local 563 is affiliated. The Employer
has no "contract with the Respondent. Pursuant to
the aforesaid agreement, the Employer has assigned
employees represented by Local 563 to perform all
unloading, erecting, dismantling, moving, and
adjustment of scaffolds.
2. Company, industry, and area practice
The Employer'ss president testified that since 1945
he has assigned this type of work to employees
represented by Local 563. Lance Bartlett, another
mason and cement contractor in the area testified
that he has always assigned the work of erecting and
dismantling tubular metal scaffolding to employees
represented by Local 563. In addition, Clarence
Johnson, Local 563's business manager, testified
that for at least '34 years the erecting and
dismantling of tubular metal scaffolding has been
awarded' to laborers Similarly, Teddy Webb, Local
563's Secretary-Treasurer stated that the area
practice in'the past has been to assign this' work to
laborers.
idleness and waste would result. As a consequence,
the Employer's costs would increase.
4. Skill'of the employees
George 'Popson, project engineer for First Florida
Corporation of Miami, testified that he had
examined the scaffolding erected by the employees
of the Employer represented by the laborers and
found nothing wrong with the scaffolding.
Furthermore, the Employer is apparently satisfied
with the skills and safety performance of, its
employees.
Conclusions
Upon the record as a whole, - and after full
consideration of all relevant factors involved, we
believe that the employees of the Employer who are
currently represented by Local 563, rather than
carpenters represented by Local 7, are entitled to
the work in dispute. We reach this conclusion
relying upon the Employer's assignment of the
disputed work to its own employees, the fact that
the assignment is consistent with the Employer's
past practice and the current bargaining contract,
the fact that the employees represented by Local 563
possess the requisite skills to perform the work, and
that such an assignment will result in efficiency and
economy of operations. We shall determine the
dispute before us by awarding all erection and
dismantling of tubular steel scaffolding where the
height of the scaffolding exceeds 14 feet at the
Pillsbury building jobsite to those employees
represented by Local 563, but not to that Union or
its members. In consequence, we shall also
determine that Local 7 was not, and is not entitled,
by means proscribed by Section 8(b)(4)(D) of the
Act, to force or require the Employer to assign the
disputed work to its members.
DETERMINATION OF DISPUTE
3. Economy and efficiency factors
The Employer's president testified that as the
laborers 'spend only a minimal amount of time
erecting and dismantling scaffolding, they are able
to tend the bricklayers,, clean up the yard, stockpile
materials, and perform other tasks when not
actually erecting and dismantling scaffolding. Frantz
also testified that he employed no carpenters, and
thus if carpenters had to be employed to perform
the task of erecting and dismantling scaffolding,
functioning of the National Joint Board, Member Zagoria agrees with the
conclusion that the parties have not submitted satisfactory evidence of an
agreed-upon method for the voluntary adjustment of the dispute
'N L R B v Radio Television Broadcast Engineers Union Local 1212,
International Brotherhood of Electrical Workers (Columbia Broadcasting
System), 364 U S 573
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
hereby makes the following determination of
dispute.
1. Employees of Donald Frantz Concrete
Construction, Inc., who are currently represented by
Laborers Union Local No. 563, Laborers
International Union of North America, AFL-CIO,
are entitled to perform the work of erecting and
dismantling all tubular steel scaffolding where the
height of the scaffolding exceeds 14 feet at the
Pillsbury building jobsite at 410 University Ave,
S.E., Minneapolis, Minnesota.
2. United Brotherhood of-Carpenters and Joiners
of America, AFL-CIO, Local No. 7, is not entitled
by means proscribed by Section 8(b)(4)(D) of the
UNITED BROTHD. OF CARPENTERS, LOCAL 7
Act to force or require Donald Frantz Concrete
Construction , Inc., to assign such scaffolding work
to carpenters represented by United Brotherhood of
Carpenters and Joiners of America , AFL-CIO,
Local No. 7.
3: Within 10 days from the date of this Decision
and Determination of Dispute, - United Brotherhood
of Carpenters and Joiners of America , AFL-CIO,
Local No. 7, shall notify the Regional Director for
675
Region 18, in writing, whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D ) of the Act, to
assign the work in dispute to carpenters represented
by the United Brotherhood of Carpenters and
Joiners-of America , AFL-CIO, Local No. 7, rather
than to employees represented by Laborers Union
Local No. 563, 'Laborers 'International Union of
North America, AFL-CIO.