Wood, Wire and Lathers Int'l Union, Local 68

National Labor Relations Board - Board Decisions

Jul 1, 1965

153 N.L.R.B. 1189 (N.L.R.B. 1965)

WOOD, WIRE AND LATHERS INT'L UNION, LOCAL 68 1189
of America, AFL-CIO, are entitled to perform all plumbing work on
prefabricated building units manufactured by Midwest Homes, Inc.,
in its plant at Carlisle, Indiana.
2. Local 157, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, is not entitled to force or require Midwest Homes,
Inc., its successors or assigns, to assign any of the above work to
employees represented by such union.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 157, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO, shall notify the Regional Director for Region
25, in writing, whether it will or will not refrain from forcing or requir-
ing Midwest Homes, Inc., its successors or assigns, by means pro-
scribed by Section 8(b) (4) (D) of the Act, to assign the above-de-
scribed work to employees of such Company represented by such
Union.
The Wood , Wire and Metal Lathers International Union, Local
Union No. 68 , AFL-CIO and State Lathing Co., Inc., and Dry-
Wall Steel Erectors , Inc.' and Carpenters District Council of
Denver and Vicinity, an affiliate of United Brotherhood of Car-
penters and Joiners of America , AFL-CIO. Case No. 27-CD-
59. July 1, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the National Labor
Relations Act, as amended, following a charge filed by State Lathing
Co., Inc. and Dry-Wall Steel Erectors, Inc., herein referred to as State
Lathing and Steel Erectors, respectively, or jointly as the Employer,
alleging that The Wood, Wire and Metal Lathers International Union,
Local Union No. 68, AFL-CIO, herein referred to as the Lathers or
the Respondent, had induced and encouraged employees of State Lath-
ing to strike for the purpose of forcing or requiring the Employer to
assign particular work to members of the Respondent rather than to
members of Carpenters District Council of Denver and Vicinity, an
affiliate of United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, herein referred to as Carpenters. A hearing was held
before Hearing Officer Allison E. Nutt, on February 18, 1965. All
parties appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to adduce
1 For reasons stated in this Decision , we find that these corporations constitute a single
employer within the meaning of Section 2 ( 2) of the Act.
153 NLRB No. 90.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence bearing on the issues. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error and are hereby
affirmed. The Employer, the Respondent, and the Carpenters 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 Members
Fanning and Brown].
Upon the entire record in this case, the Board makes the following
findings :
1. THE BUSINESS OF THE EMPLOYER
State Lathing Co., Inc., is an employer engaged in the lathing and
plastering business in Colorado and receives goods directly and indi-
rectly from outside of Colorado valued at more than $50,000 per year.
State Lathing usually has from six to eight jobs in progress simul-
taneously.
Dry-Wall Steel Erectors, Inc., is an employer also engaged in the
lathing and plastering business in Colorado. Steel Erectors was
organized as a corporation in December 1964, by the three individuals
who own all the stock in State Lathing Co., Inc., Steel Erectors was
organized for the specific purpose of installing metal components to
receive drywall surfaces. It employed its first workmen in January
1965. These employees were employed on jobs which previously had
been assigned to State Lathing employees pursuant to agreements
between State Lathing and certain drywall contractors on the particu-
lar jobs in question. The work of installing metal components to
receive drywall surfaces was taken over by Steel Erectors without any
change being made in the agreements between State Lathing and the
drywall contractors. Upon the formation of Steel Erectors, State
Lathing announced that, thenceforth, it would install metal compo-
nents only on jobs which the metal components were to receive plaster
surfaces, and it would not perform such work for drywall contractors.
Gurley A. Owens is general manager of State Lathing and of Steel
Erectors. Owens controls the labor relations policies of each corpo-
ration. He negotiated and signed the collective-bargaining agreement
that each corporation has with the particular union representing its
employees.
Steel Erectors owns no tools or equipment and rents such items from
State Lathing. Both corporations operate out of the same office; a
single office clerk performs the necessary clerical duties of each corpo-
ration. As already noted, the same individuals are stockholders in
each corporation, although only one of them, the attorney representing
each corporation in this case, is a director in each corporation.
On the basis of the foregoing, including particularly the following
facts: (1) the capital stock of State Lathing and Steel Erectors is
WOOD, WIRE AND LATHERS INT'L UNION, LOCAL 68 1191
owned by the same three individuals, (2) both corporations are man-
aged by the same individual out of single office, and that individual
establishes the labor relations policies of each corporation, and (3)
the two corporations are engaged in essentially the same business, with
Steel Erectors renting equipment and tools from State Lathing for the
purpose of performing work State Lathing previously had been per-
forming, we find that State Lathing and Steel Erectors constitute a
single employer engaged in the erection of metal studs to receive dry-
wall and other surfaces. Accordingly, on the basis of the commerce
facts with respect to State Lathing's operations, we find that it will
effectuate the policies of the Act to assert jurisdiction over the opera-
tions of State Lathing and Steel Erectors, the Employer herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Respondent and the
Carpenters are labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The work in issue
Metal tracks, metal studs , and bracing materials used in the erection
of interior walls or partitions receive a surface of either plaster or dry-
wall material . The work in dispute here is the installation of the metal
tracks, metal studs, and bracing materials which are to receive drywall
surfaces.2
B. Background
State Lathing has been an employer of members of Lathers continu-
ally since 1959 during which period there have been continuous con-
tracts between the parties. On December 31, 1964, the stockholders of
State Lathing formed Steel Erectors and on the same date Steel Erec-
tors entered into a collective-bargaining agreement with Carpenters.
The record in this case establishes that the disputed work was per-
formed by lathers in the past and that State Lathing had never
employed carpenters for the work. The record further shows that,
immediately prior to the formation of Steel Erectors, State Lathing
was installing metal components to receive drywall on jobs at the Den-
ver Federal Center and at the Lincoln Towers, an 11-story office build-
ing in Denver. The last metal-stud work performed by State Lathing
at the Federal Center with lathers was in the first week of December.
I Lathers contends that the work in dispute includes erection of metal components to
receive surfaces other than drywall, as well as those erected to receive drywall surface,,.
However, as the Carpenters make no claim for work of erecting metal components to
receive other than drywall surfaces , but has only noted on this record its willingness to
have its members perform such work , if an employer assigns such to its members, and as
the Employer herein has continued to assign such work to members of the Lathers, we
find that the work in dispute is only that described in the text above.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the Lincoln Towers building, State Lathing had commenced work
in October 1964, using lathers. On the Lincoln Towers job, State
Lathing had an outstanding bid with Denver Dry Wall Company in
the form of a guaranteed price per lineal foot for the installation of
interior partitions , good for 18 months . The arrangement was that
Denver Dry Wall would order work to be done by State as the project
progressed and the last work performed by State Lathing was com-
pleted in the latter part of November 1964. The record therefore
establishes that the assignment of the work in dispute on the above
jobs was originally made to lathers. Lathers performed the work in
dispute on both jobs in the fall1964, up until January 1965, when Steel
Erectors began performing work on both jobs with carpenters. Upon
formation of Steel Erectors , as already noted, State Lathing
announced that it no longer would install metal tracks and studs on
jobs which were to receive drywall surfaces, as such work was, hence-
forth, to be done by Steel Erectors.
On January 4, 1965, Respondent asked that Steel Erectors sign a
collective-bargaining agreement. Steel Erectors refused because its
employees, when hired, would be covered by the collective-bargaining
agreement with Carpenters. Respondent thereupon warned Steel
Erectors that it would refuse to supply workmen to State Lathing
jobs. On January 5, Respondent told two supervisors (members of
Lathers) employed by State Lathing that they would be subject to
fines and loss of membership if they worked with members of Car-
penters. On January 11 employees of State Lathing represented by
Lathers refused to report for work on jobs other than those on the
Federal Center and Lincoln Towers buildings. Respondent again
said its members would not work for State Lathing while members of
Carpenters were employed by Steel Erectors. Respondent subse-
quently agreed to supply men to State Lathing pending settlement of
the present dispute.
State Lathing usually has a number of jobs in progress simultane-
ously. Prior to December 31, 1964, it provided lathing services to both
plastering and drywall contractors. With the formation of Steel
Erectors on December 31, 1964, State Lathing announced that it would
no longer install metal components for drywall application and,
henceforth, such work would be done by employees of Steel Erectors
who were represented by Carpenters. Since December 31, 1964, State
Lathing has continued to install metal components to which materials
other than drywall were to be applied. The parties are in agreement
that the skill and ability required to install all types of metal compo-
nents are the same, are not affected by the nature of covering materials
to be applied to them, and that both unions are able to supply well-
qualified, experienced workmen.
WOOD, WIRE AND LATHERS INT'L UNION, LOCAL 68 1193
C. Contentions of the parties
Respondent contends that the work of installing metal tracks and
studs to receive drywall is the same as for installing metal tracks and
studs to receive other materials. Members of Lathers are qualified to
do all types of installation and have been doing so for State Lathing
since 1959 . Respondent also contends that State Lathing and Steel
Erectors constitute a single employer under the Act and the formation
of Steel Erectors was a subterfuge to evade State Lathing's contrac-
tual obligation to the Lathers. Finally, Respondent asserts that the
disputed work belongs to its members on the basis of custom and prac-
tice in the industry.
The Carpenters argues that Steel Erectors is a bona fide employer
which voluntarily entered into a collective-bargaining agreement with
Carpenters which is dispositive of the issue herein; that in the Denver
area carpenters have customarily installed metal studs to receive dry-
wall ; and that the assignment of the work in dispute to its members
should be sustained on the basis of efficiency of the Employer's opera-
tion and its assignment of the work.
The Employer gave no reason for State Lathing's decision to dis-
continue the work of installing metal components to receive drywall
and have such work done by employees of Steel Erectors. Respondent
Lathers was notified in October 1964 that State Lathing intended to
change the work assignment and the change was made on January 1,
1965. In its brief the Employer contends that the activities of the rep-
resentatives of the Respondent were improper and coercive and vio-
lated standards of fair practice by attempting to use one employer
corporation to influence the acts of another employer corporation.
D. Applicability of the statute
The charges filed herein allege a violation of Section 8(b) (4) (D)
of the Act: The record shows, and Respondent does not deny, that it
threatened to and did stop work on jobs in which State Lathing was
involved in order to force Steel Erectors to use lathers rather than
carpenters on the Federal Center and Lincoln Towers building jobs.
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.
E. Merits of the dispute
Section 10 (k) of the Act requires the Board to make an affirmative
award of the disputed work, after giving clue consideration to various
relevant factors. The following are the factors relied on by the parties
to the dispute to support their respective claims :
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The collective-bargaining agreements
The Carpenters has a contract with Steel Erectors which it claims
and the purpose of this case we assume, assigns the work in dispute to
employees represented by the Carpenters.
Respondent Lathers contends that its contract with State Lathing
assigns the work in dispute to its members. In a previous case, how-
ever, we found that the same contractual language did not specifically
assign work similar to that involved herein to members of the Lathers .3
We do not consider the bargaining agreement between Steel Erectors
and the Carpenters to have controlling weight because this contract
was executed at a time when employees of State Lathing, who were
covered by an existing collective-bargaining agreement with Respond-
ent Lathers, had been performing the work in dispute under terms
and conditions of employment set forth in that collective-bargaining
agreement.
2. Company, area, and industry practice
Although both disputants offered considerable evidence on area and
industry practice, such evidence does not disclose a controlling prac-
tice 4 As has already been noted, the Employer's past practice has
been to assign the work in dispute to lathers under its collective-bar-
gaining agreement with Respondent. Such work on the very projects
involved herein was performed by members of the Lathers pursuant
to such assignment. It was not until formation of Steel Erectors that
the Employer assigned the work to carpenters represented by Car-
penters. The Employer's present assignment, therefore, represents a
change in the Employer's past practice.
3. Employee skills and efficiency of operations
It is not contended that either lathers or carpenters lack the skills or
ability to perform the work of erecting the metal tracks and metal
studs which is in dispute in this case. The record indicates that the
skill required to erect these metal components is the same whether they
are to receive a dry plaster wall surface or some other surface. The
Employer is continuing to use lathers to erect metal components which
receive plaster surfaces. There is no evidence in this record to suggest
that the assignment of the work in dispute to carpenters leads to a
more efficient operation than would assignment of the work to lathers.
3 Carpenters District Council of Denver & Vicinity , AFL-CIO (J. O. Veteto and Son),
146 NLRB 1242.
* The parties stipulated that much of the record in the Veteto case be made part of the
record in this case . There, the same two labor organizations were involved as are in-
volved herein . They presented much evidence as to industry and area practice The
Board found such evidence to be inconclusive . Such additional evidence as to area and
industry practice as was adduced at the instant hearing does not favor either labor
organization.
WOOD , WIRE AND LATHERS INT'L UNION , LOCAL 68 1195
4. Action of the Joint Board
Both Unions cite numerous decisions of the National Joint Board
for the Settlement of Jurisdictional Disputes to support their claims to
the disputed work. There has been , however, no determination by,
or submission to, the Joint Board in the present dispute , nor has this
Employer agreed to be bound by decisions of the Joint Board.
Conclusions
Upon consideration of all pertinent factors appearing in the entire
record, we shall assign the work in dispute to lathers. Lathers are as
skilled in the performance of the work in dispute , as are the carpenters
who compete for it. Lathers started to perform the work in dispute on
the two projects directly involved . Assignment of the work to lathers
is not inconsistent with area and local industry practice . It is consist-
ent with the collective-bargaining agreement between the Lathers and
the Employer under which lathers had generally been performing the
work in question , until the Employer recognized the Carpenters, and
substituted carpenters for lathers on the two projects. In these cir-
cumstances , we find that it would upset the stability of the existing col-
lective-bargaining relationship were we to honor the Employer's
assignment of the work in dispute to the Carpenters.
We shall determine the existing jurisdictional dispute by deciding
that lathers, rather than carpenters, are entitled to the work in dispute.
As the Employer announced , upon the formation of Steel Erectors and
that company's execution of a collective-bargaining agreement with the
Carpenters, that it intended to follow the work assignment placed in
issue herein for all future jobs, we shall make this determination appli-
cable to all similar work being preformed by, or which may be awarded
to, the Employer in Denver, Colorado, and vicinity. In making this
determination , we are assigning the disputed work to the employees of
the Employer who are represented by the Lathers but not to that
union or its members.
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 hereby
makes the following determination of the dispute :
Lathers employed by State Lathing Co., Inc., who are represented
by The Wood, Wire and Metal Lathers International Union, Local
Union No. 68 , AFL-CIO , are entitled to perform the work of erect-
ing all metal components, including metal tracks , metal studs, and
bracing components which are installed to receive drywall on interior
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partitions on the Lincoln Towers and Federal Center jobs, and on all
other jobs being performed by, or which may be awarded to, the
Employer in Denver, Colorado, and vicinity.
Orange Belt District Council of Painters #48, AFL-CIO, its af-
filated Local Unions, and its Agents and Calhoun Drywall
Company
Building and Construction Trades Council of San Bernardino
and Riverside Counties , AFL-CIO and Calhoun Drywall Com-
pany. Cases Nos. 21-CC-449-1 and 21-CC-449-2. July 1, 1965
SUPPLEMENTAL DECISION AND ORDER
On October 23, 1962, the National Labor Relations Board issued a
Decision and Order in the above-entitled proceeding,' finding, inter
alia, that the Respondent Orange Belt District Council of Painters
#48, AFL-CIO, its affiliated Local Unions, and its Agents (herein
called the Respondent Painters) and the Respondent Building and
Construction Trades Council of San Bernardino and Riverside Coun-
ties , AFL-CIO (herein called the Respondent Council) had engaged in
certain conduct in violation of Section 8 (b) (4) (ii) (B) of the National
Labor Relations Act, as amended, and ordering them to cease and
desist therefrom and to take certain affirmative action, as set forth
herein. Thereafter, pursuant to its Decision of January 30, 1964,
the United States Court of Appeals for the District of Columbia
Circuit vacated the Board's Order and remanded the case to the
Board for the purpose of supplementing the record with additional
evidence .2 On April 28, 1964, the Board issued an Order reopening
the record in this case and directing that a further hearing be held
for the purpose of receiving further evidence in conformity with the
court's remand.
On November 4, 1964, Trial Examiner James R. Hemingway issued
a Supplemental Decision in the above-entitled proceeding, finding that
the Respondents had engaged in unfair labor practices in violation
of Section 8(b) (4) (ii) (B) and recommending that the Board's Order
that they cease and desist therefrom and take certain affirmative action
be reaffirmed and enforced, as set forth in the attached Trial Exam-
iner's Supplemental Decision. Thereafter, the Respondents filed
exceptions to the Trial Examiner's Supplemental Decision and a brief
in support thereof. After the transfer of the case to the Board, the
1139 NLRB 883.
2 328 F. 2d 534.
153 NLRB No. 80.