United Brotherhood of Carpenters, Etc., Local 690

National Labor Relations Board - Board Decisions

Mar 16, 1965

151 N.L.R.B. 741 (N.L.R.B. 1965)

UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 690 741
The Charging Party, in its brief, urges a finding of violation of Section 8(b) (4) (i)
'(B) of the Act.14 Because the complaint did not allege such a violation , I would
not make the finding urged by the Charging Party even if, after the Supreme Court
decisions already cited, any doubt remained as to the merits of such contention.
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. The Charging Party is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and the secondary employers named in the complaint, as
amended, are engaged in an industry affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2 (5) of the Act.
3. Managers of secondary neutral employers named in the complaint are "persons
engaged in commerce or in an industry affecting commerce " within the meaning of
Section 8(b) (4) (ii ) of the Act.
4. Respondent has not threatened , coerced , or restrained any person engaged in
commerce or in an industry affecting commerce within the meaning of Section
8(b) (4) (ii) (B) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, I recommend that the
complaint be dismissed in its entirety.
14 The original charge contained allegations of violations of Section 8(b)(4)(1) and
(ii) (B), but the amended charge and the complaint , Itself , based on the amended charge,
alleged solely a violation of Section 8(b) (4) (it) (B).
United Brotherhood of Carpenters and Joiners of America, AFL-
,CIO, Local 6901 and The Walter Corporation and Wood, Wire
and Metal Lathers International Union , AFL-CIO, Local 326.2
Case No. 26-CD-18. March 16, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following the filing of charges
under Section 8 (b) (4) (D) by The Walter Corporation (herein
called the Employer or Walter). The charges alleged that United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Local No. 690 (herein called the Carpenters) had threatened, coerced,
and restrained the Employer, and had induced and encouraged its
employees to engage in a strike and to refuse to perform certain
services , with an object of forcing and requiring the Employer to
assign certain work to employees who are members of the Carpenters,
rather than to employees who are members of Wood, Wire and
Metal Lathers International Union, AFL-CIO, Local 326 (herein
called the Lathers) to whom the Employer had assigned the work
in dispute.
1 The name of Carpenters appears as amended at the hearing.
E The name of Lathers appears as amended at the hearing
151 NLRB No. 80.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was held before Hearing Officer J. Edward Wise on
November 30 and December 1, 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. Thereafter,
Carpenters, Employer, and Lathers filed briefs 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 [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire record in this case, the Board makes the following
findings :
1. The parties stipulated, and we find, that the Employer is
engaged in commerce within the meaning of the Act.
2. The parties stipulated, and we find, that Lathers and Car-
penters are labor organizations within the meaning of the Act.
3. The dispute :
The Work in Issue
The disputed work which gave rise to this proceeding consists
of attaching metal tracks to floors and ceilings , either by nailing
or by power -actuated screws, in accordance with a layout previously
marked by carpenters , and thereafter , the insertion of metal studs
between the ceiling track and the floor track . A drywall gypsum
board is then attached by a screw -nail to these studs and tracks.
The Basic Facts
The Employer is engaged in the lathing, plastering , and drywall
contracting business . It has a subcontract to install all lath, plaster,
and drywall work at Lakewood House, a 16 -story apartment build-
ing being constructed in Little Rock, Arkansas . The subcontract
requires the Employer to lay out the location of all partitions,
set metal doorframes , install metal track and metal studs, and affix
the gypsum board to drywall channel studs according to specifications.
Walter has collective -bargaining agreements with both the Lathers
and the Carpenters , and employs both crafts on its jobs. The
parties stipulated that neither Union has been certified by the Board
with respect to any employee involved in the instant proceeding.
On November 2, 1964, the president of Walter , at a meeting
with representatives of the Lathers, the Carpenters , and the general
contractor , issued a written assignment awarding the installation
of the metal tracks and studs to employees who were members of the
Lathers. The Carpenters representatives claimed the work in
UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL -690 743
question for members of their union, and warned that if the Em-
ployer started the job under this agreement, the Carpenters would
cause a work stoppage.
The Employer commenced work at the Lakewood project on
November 4, using carpenters. When lathers appeared at the job
the following day, to begin laying metal tracks and studs, the car-
penters walked off and a picket appeared carrying a sign which
read :
Walter, Unfair Carpenters Local No. 690
This picketing precipitated a walkout of all the crafts on the job,
thereby causing a virtual stoppage of work on the entire project
except for the lathers who continued to install the metal track and
studs. The picketing continued until November 12, 1964, at which
time, it was enjoined by a Federal district court. The job resumed
when the picketing ceased.
Contention of the Parties
The Carpenters claims the disputed work on the basis of past
practices of the Employer, existing industry practice in the Little
Rock area, a 1961 agreement between the two unions discussed infra,
the collective-bargaining agreement with Walter, and the greater
efficiency and skill of carpenters in performing the disputed work.
The Employer and the Lathers jointly maintain that the Employ-
er's assignment of the work should be determinative, relying upon
economy and increased efficiency of the operation, greater skills
of lathers, similarity of the work to other work performed by
lathers, recent experiences of the Employer using lathers rather
than carpenters, and the collective-bargaining agreement between
them. Moreover, the Lathers maintains that its claim is supported
by historical practices, the architectural specifications, and a 1903
agreement between the contending unions.
Applicability of the Statute
Before the Board may proceed to a determination of 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.
The evidence indicates that the Carpenters picketed the Lakewood
jobsite because the disputed work was assigned to lathers rather
than to carpenters.
Accordingly, 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 under Section
10(k) of the Act.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the various
relevant factors. As the Board has stated, its determination in a
jurisdictional dispute case is an act of judgment based upon common-
sense, experience, and a balancing of relevant factors .-3 In this case,
we have considered the following relevant factors.
1. Historical developments
The Lathers introduced testimony to show that since the turn
of the century, lathers have performed the work of installing
metal studding, and that the installation of the nailable metal studs
herein disputed is basically the same as the installation of any other
prefabricated metal stud, regardless of the type of material there-
after attached to it. The Carpenters' witnesses testified that the
nailable metal stud was developed as a replacement for the 2- by
4-inch wood stud, traditionally installed by carpenters.
2. Collective-bargaining agreements
Each of the contending Unions relies on its present collective-
bargaining agreement with the Employer to support its claim to
the disputed work. Upon examination and analysis of the pertinent
provisions of the contracts,4 we conclude that neither contract ex-
pressly covers the work in question.
3. Decisions of the Joint Board
Each disputant introduced in evidence decisions by the National
Joint Board for the Settlement of Jurisdictional Disputes to support
its respective claim. As we said in United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, Local 162 (0. R.
Karst), 139 NLRB 591, "We do not believe that such decisions
indicate more than that the instant dispute between the Unions is
3 International Association of Machinists, Lodge No. 1743 ( J. A. Jones Construction Com-
pany ), 135 NLRB 1402.
* The Lathers contract with Walter recognizes the jurisdiction of Lathers as set forth in
the International Constitution . The Board , in Local 964 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO (Robert A. W . Carleton, d/b/a Carleton Brothers Com-
pany ), 141 NLRB 1138, 1141 and footnote 3, considered a provision which contained the
same language as the constitutional section referred to herein and held that it did not
specifically assign to Lathers work similar to that here in dispute.
The Carpenters agreement provides , in pertinent part, as follows:
Section 5 . That contractors will assign work to carpenters in accordance with the
`PLAN FOR SETTLING JURISDICTIONAL DISPUTES NATIONALLY AND
LOCALLY APPROVED BY THE BUILDING AND CONSTRUCTION TRADES DE-
11PARTMENT, AMERICAN FEDERATION OF LABOR . . . .
UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 690 745
one of long standing and that neither Union has conceded to the
other the right to perform the work in dispute." The same may
be said in this case.
4. Company, area, and industry practice
Both Unions offered considerable evidence on industry and Em-
ployer practices in the assignment of work similar to that herein
disputed. The particular metal stud used in the disputed work is
a variation of other metal studs. It has only been on the market for
about 3 years and is now widely used since it can receive all forms
of gypsum board thereby causing a decline in the use of plaster for
partitions. Thus the evidence as to the practice in the erection
of this type of stud is somewhat limited. A further consideration
is that the jurisdictional dispute involved here is limited to whether
carpenters or lathers are entitled to perform the disputed work
on a job located in the Little Rock area of Arkansas. Thus, the
Employer's president testified that prior to the Lakewood project
it employed carpenters exclusively to perform the disputed work
in the Little Rock area. Moreover, other record evidence clearly
supports the Carpenters' contention that in the Little Rock area
it has been the general industry practice since the 1961 agreement
discussed infra to assign the work in dispute to carpenters. Accord-
ingly, we find that the Employer's assignment of the work is con-
trary to past industry and Employer practices within this defined
geographic area.5
5. The employer's assignment and efficiency of operations
As indicated above, the Employer assigned the installation of
the disputed work to lathers. Walter contends that the assignment
was motivated by sound business judgment and a recent experience
using lathers on a similar project located in Hot Springs, Arkansas,
which affirmed its determination that it was more economical and
efficient to use lathers because of the average lather's familiarity with
the necessary metals and tools, which enable him immediately to
attain peak job performance, and because of a wage differential
between the crafts.
Walter's contract includes, in addition to the work in dispute
herein, such other work as installing suspended ceilings and metal
studs that will receive a wetwall covering. The latter work is done
5 The Lathers contends that the Board has considered the architectural specifications as
a factor in determining an award of the work In this case , even though the Employer's
assignment of the work conforms to the architectural specification , we do not give much
weight to this factor . United Brotherhood of Carpenters and Joiners of Amnerica,
Looal 1622 ( 0 R. Karst ), supra
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by lathers. The Carpenters' claim, however, is limited to the in-
stallation of metal tracks and studs to receive a drywall covering.
This limited claim tends to support the Employer's contention that
a more efficient use of manpower results when lathers are used
as they can be moved from task to task on the job.
6. Jurisdictional precedent
According to the basic jurisdiction grant in 1903 by the American
Federation of Labor and its Building Trades Department, the Car-
penters International Union has jurisdiction over woodwork, whereas
the Lathers International has jurisdiction over light iron construc-
tion, furring, and lath (wood, wire, and metal), for the purpose
of holding plaster or like material. The Lathers contends that
the Carpenters International Union, in a 1903 agreement with the
Lathers Union, agreed that jurisdiction over iron studding belongs
to the Lathers.
In Local 964, United Brotherhood of Carpenters, etc., supra, at
1142, we found that the Carpenters International never ratified
this agreement, and has refused, in the past, to abide by it. There-
fore, following that determination we are unable to give any weight
to this factor in determining the assignment of the work in dispute
herein.
7. Agreement between the Unions
The Carpenters' contention regarding its right to the disputed
work rests, in large part, upon an agreement entered into in May
1961, for the State of Arkansas, between international representa-
tives of the contending organizations, which purports to resolve the
jurisdictional dispute between the two organizations by assigning
to carpenters, "The installation of metal studs-nailable or non-
nailable-to receive materials other than plaster or sprayed-on or
trowel applied materials, is the work of the Carpenters." 6 This
agreement resulted from a jurisdictional dispute which had caused
a work stoppage in the construction of the Federal Building in Little
Rock. It appears that since 1961 most subcontractors have abided
by the terms of this agreement.
6 The agreement provides, inter alga:
(7) The installation of metal studs-nailable or non-nailable-including the instal-
lation of metal lath, rock lath, gypsum board or other backing, to receive plaster or
to receive sprayed-on or trowel applied materials, done by Plasters [sic], is the work
of the Lathers. The installation of metal studs-nailable or non-nailable-to receive
rock lath (16" & 24" widths including the installation of such rock lath), is the
work of the Lathers.
The installation of metal studs-nailable or non-nailable-to receive finished mate-
rials other than plaster or sprayed-on or trowel applied materials, is the work of the
Carpenters. The installation of metal studs-nailable or non-nailable-to receive a
backing for laminated wall construction other than rock lath (16" & 24" width rock
lath) including the installation of such backing, is the work of the Carpenters.
UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 690 747
The Lathers argues that no effect should be given the agreement,
as it was terminated by Lathers Local 326 before the Employer
assigned the presently disputed work, and in some instances con-
tractors have not performed in accordance with its provisions. Such
abrogation, however, cannot erase the history of the agreement's
existence and the effect thereof.
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
In International Association of Machinists (J. A. Jones Construc-
tion Co.), supra, the Board set forth the following criteria to be con-
sidered in the making of an affirmative award under the CBS
decision.7
The Board will consider all relevant factors in determining who
is entitled to the work in dispute, e.g., the skills and work
involved, certifications by the Board, company and industry
practice, agreements between unions and between employers and
unions, awards of arbitrators, joint boards and the AFL-CIO in
the same or related cases, the assignment made by the employer,
and the efficient operation of the employer's business. [Emphasis
supplied.]
The Carpenters relies basically on employer and industry practice
within the Little Rock area, consistent with the assignment of the
work as described in the 1961 agreement, whereas the Employer and
the Lathers place their main emphasis upon efficient and economical
method of operation based on business judgment.
In the Acoustics & Specialties case,8 the Board said that in ful-
filling its functions under Section 10(k), it "must act very much like
an arbitrator, balancing all of the interests involved and aiming at a
solution which will, in its judgment, finally resolve the dispute." In
the present case, neither of the Unions has a better claim to the
disputed work on the basis of a collective-bargaining contract or a
certification by the Board. Both carpenters and lathers are qualified
to do, and have done, the work in dispute. Employer and industry
practice in the Little Rock area definitely favors the assignment to
carpenters. We accept the Employer's claim that it is generally
more efficient and economical to have lathers do the disputed work,
particularly when there is other work to be done by lathers. But
this factor of economy and efficiency is outweighed by employer and
industry practice and the 1961 agreement to which we ascribe special
importance. The present dispute is representative of many others
7 N L R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, etc (Columbia
Broadcasting System), 364 U.S. 573
8 Local Union No. 68, Wood, Wire and Metal Lathers International Union, AFL-CIO
(Acoustics & Specialties, Inc.), 142 NLRB 1073, 1078.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving the same two contending labor organizations. The 1961
agreement was an attempt permanently to resolve this fundamental
dispute by an allocation of work between members of the unions.
From 1961 until the present dispute arose, it has been adhered to by
the unions and most employers in the area. In other words, it
resulted in a settlement of the longstanding jurisdictional dispute.
In Acoustic cC Specialties, the Board said that considerable weight
should be given to voluntary agreements between unions resolving
jurisdictional disputes. "By so dosing the Board will be encouraging
unions to settle such disputes by agreement, a desirable policy."
Although the Lathers has now repudiated this agreement, the Board
can still consider the practical effect of the agreement as a factor in
determining how the jurisdictional dispute should be resolved. Be-
cause we believe that a preponderance of relevant factors favors
carpenters, we shall award the disputed work to members of that
craft. In making this determination, we are assigning the disputed
work to carpenters who are represented by the Carpenters, but not
to that labor organization or its members.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings, and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10(k) of the Act:
Employees engaged as carpenters are entitled to do the work of
installing metal tracks and studs to which drywall gypsum board is
attached at the Lakewood House project of The Walter Corporation.
Bamberger 's Paramus , a Division of Bamberger's New Jersey, a
Division of R. H . Macy & Co., Inc.' and Local 723, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Petitioner. Case No. 22-IBC-2446.
March 16, 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
Officer Christopher J. Hoey. The Hearing Officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Briefs have been filed by the Employer and the Petitioner herein and
by the Retail Merchants Association as amicus curiae.
' The name of the Employer appears as amended at the hearing.
151 NLRB No. 81.