Carpenters Local No. 213

National Labor Relations Board - Board Decisions

Apr 28, 1969

175 N.L.R.B. 616 (N.L.R.B. 1969)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America , Local No. 213 , AFL-CIO and General
Masonry , Inc. and Laborers International Union of
North America, Local No. 18 , AFL-CIO. Case
23-CD-184
April 28, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following charges filed by General Masonry, Inc.,
herein called - General Masonry or the Employer,
alleging that United Brotherhood of Carpenters and
Joiners of America , Local No. 213, AFL-CIO,
herein called Carpenters Local 213, has violated
Section 8(b)(4)(D) of the Act. A duly scheduled
hearing was held before Hearing Officer Jerome L.
Avedon on December 27 and 30, 1968. The
Employer and Carpenters Local 213 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.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with the case to a
three-member panel.
The Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds that
no prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this case , including the
briefs of Carpenters Local 213 and the Employer,
the Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
General Masonry, Inc., a Texas corporation with
its principal office and place of business in
Pasadena, Texas, is engaged in the erection of
masonry as a masonry contractor in the building
and construction industry in various parts of the
State of Texas. During the past 12 months General
Masonry, Inc., has purchased and received goods
from outside the State of Texas valued in excess of
$50,000. The parties agree, and we find, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated , and we find, that
Carpenters Local 213 and Laborers International
Union of North America, Local No. 18, AFL-CIO,
herein referred to as Laborers Local 18, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Manhattan Construction Company of Texas,
herein referred to as Manhattan, is the general
contractor on an addition and modification presently
being erected at the St. Luke's-Texas Children's
Hospital project in Houston, Texas. General
Masonry has a subcontract to perform the masonry
work at the site. General Masonry has no
collective-bargaining agreement with Carpenters
Local 213, having refused to renew an agreement
which General Masonry's predecessor had with
Local 213 and which expired May 1, 1968. General
Masonry is party to a collective-bargaining
agreement with Laborers Local 18, pursuant to
which it employs laborers to erect, move and
disassemble metal tubular scaffolding at the
above-mentioned hospital site, as well as elsewhere.
James M. Childs, Jr., a construction
superintendent for Manhattan, testified that in
September 1968, when General Masonry laborers
were erecting scaffolding at the jobsite, Carpenters
Local 213's steward Westbrook advised Childs that
"the carpenters would not stay there as long as the
laborers were doing their work." About a week later
Westbrook stated to Childs, "They told me not to
let the carpenters work as long as the laborers are
putting up the bricklayers' scaffolding." Whereupon
the carpenters, including Westbrook, who were
employed by Manhattan and other contractors at
the site, ceased work and walked off the job. This
work stoppage continued for 1 day after which all
carpenters returned to work.
On December 26, 1968, Null, an officer of
Carpenters Local 213, presented himself at a
separately located Houston building project where
General Masonry was a subcontractor, and asked
General Masonry's foreman whether carpenters
would be used to do the scaffolding work there
involved. The foreman replied that laborers would
be used, at which time Null stated that "I guess you
know what I am going to do." A picket appeared at
the project that same day and on December 27. The
picket sign stated "General Masonry does not
employ members of nor have a contract with the
Carpenters District Council of Houston." As a
result of the picketing on December 27, none of the
employees of any other contractor or subcontractor
scheduled to work on the site performed any work.
B. The Work in Dispute
The work in dispute here is the erection,
assembly, and dismantling of steel tubular section
175 NLRB No. 101
CARPENTERS LOCAL NO. 213
scaffolds at construction projects located at
Houston, Texas.
C. The Contentions of the Parties
Carpenters Local 213 contends that there is
insufficient evidence to establish reasonable cause to
believe Section 8(b)(4)(D) was violated. Local 213
contends it has not engaged in inducement or
coercion and insists it has no dispute with Laborers
Local 18 over work assignment.
The Employer contends that Section 8(b)(4)(D)
was violated by, inter alia, the threats and work
stoppages initiated by Carpenters Local 213 in
September and December pursuant to Local 213's
attempts to force the Employer to assign its
scaffolding work to Local 213's members rather
than to laborers.
The Employer further contends that the disputed
work belongs to laborers because of Employer, area,
and industry practice, skill and efficiency, contract
coverage, and the Employer's assignment of the
work to laborers.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which a Section
8(b)(4)(D) charge has arisen . However, before the
Board proceeds with a determination of dispute it
must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
The record shows that in September, 1968,
Carpenters Local 213's steward at the hospital
construction site where laborers employed by the
Employer were engaging in scaffolding work, told
the general contractor on the site that carpenters
and not laborers should perform that work, and that
there would be a work stoppage if the scaffolding
was not reassigned to the carpenters. Shortly
thereafter, there having been no reassignment of the
work, the steward led all carpenters at the site on a
1-day work stoppage.
The record further shows that in late December at
another Houston, Texas, construction job involving
the Employer an officer of Carpenters Local 213,
having first inquired, was told by the Employer that
laborers rather than carpenters would perform the
scaffold work there involved. Local 213's officer
replied, "I guess you know what I am going to do,"
shortly after which a picket appeared and a work
stoppage developed.
In view of the conduct described above,' 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.'
' Tampa Sand and Material Co, 132 NLRB 1564 , 1568, 1581.
'No finding has been made based on the activities of the Houston
District Council as there is little if any evidence that it was acting as an
agent of Carpenters Local 213. Moreover , the Council is not a party
herein.
E. Merits of the Dispute'
617
1. Collective-bargaining agreement
The Employer and Laborers Local 18 are parties
to a collective-bargaining agreement which provides
that the scaffolding work shall be assigned to unit
employees, represented by Local 18. Carpenters
Local 213 has no contract with the Employer, and
the Employer employs carpenters only on rare
occasions.
2. Employer and industry practices
Testimony by the Employer and other masonry
contractors, as well as written statements by Texas
contractors who did not appear at the hearing,
compels the conclusion that the overwhelming
practice of this Employer as well as of the industry,
both in the city of Houston and the State of Texas,
is to assign scaffolding work to laborers rather than
carpenters.
3. Employee skills and efficiency of operation
Scaffolding is first used when a masonry wall has
been erected scaffold-high. The erection of
scaffolding begins with the worker removing any
excess material which was used to erect the wall. If
the terrain is uneven, he levels it with a shovel
before placing the mud sill, a 2 x 10 foot scaffold
board, flat on the ground, parallel to the masonry
wall.
The worker next sets a scaffold frame on the mud
sill and attaches a 7 x 5 foot cross brace. The brace
has a hole in the end which is slipped into a metal
stud protruding from the scaffold frame. The brace
is pushed onto the stud until a gravity-lock pin in
the stud drops. The worker then takes a second
scaffold frame and connects it with the other end of
the cross brace, and repeats this process with a
second cross brace on the other side of the scaffold,
making one complete section of scaffold. If
additional leveling is then required it is done by
means of a base plate and screw foot. Level is
determined by a plumb.
The worker next attaches the side brackets,
triangular pieces of metal, to the sides of the frame
next to the wall. He then lays two 15 x 2 x 10 foot
boards loose across the side brackets for the mason
to stand on. He also lays four or five such boards
across the top of the scaffold frame itself. As the
mason raises the height of the wall, the side bracket
is progressively raised.
After the mason is finished, the worker (called a
mason tender) places a second set of frames on top
of the first set to raise the height of the wall scaffold
to the next height. The first and' second heights of
'Carpenters Local 213 introduced no evidence concerning the merits of
the dispute
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scaffolds are connected with a coupling pin? A
half-inch metal screw is screwed into the scaffold
frame and through a hole in the coupling pin to
secure it. When the second height is completed, the
worker moves the board from the platform of the
first level of scaffold to that of the second. He also
raises the side brackets to the lowest position on,the
second frame. For dismantling the operation is just
reversed. -
No special skills or,tools are required to erect or
disassemble scaffolding. Both carpenters and
laborers possess the requisite abilities to perform the
work.
As stated above, the Employer does not regularly
employ carpenters. To reassign this work to
carpenters would therefore entail loss of work by the
laborers who have been performing it. Moreover
only 1 hour per day is required to perform actual
erection or disassembly of scaffolding. As the
Employer has little other regular employment for
carpenters, much down time would be involved if
carpenters were assigned the work. Laborers, on the
other hand, are used elsewhere by the Employer
when there is no scaffolding work to be done.
F. Conclusions as to the Merits of the Dispute
On the basis of the record as a whole, and upon
appraisal of all relevant considerations, we believe
that the work in dispute should be awarded to
employees, represented by Laborers Local 18. The
fact that the Employer's assignment conforms to its
own and the area practice and is consistent with its
collective-bargaining agreement , the fact that
laborers employed by General Masonry not only
have the requisite skill but are familiar with all
facets of the work, and the attendant efficiency of
operations leads us to conclude that General
Masonry ' s assignment of the work should not be
disturbed . Therefore, we shall determine the dispute
by assigning the work in question to employees of
General Masonry represented by Laborers Local 18.
In making this determination , which is limited to
the controversy which gave rise to this proceeding,
we are not assigning the work to Local 18, 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.
1. Employees employed by General Masonry,
Inc., who are represented by Laborers International
Union of North America, Local No. 18, AFL-CIO,
rather than carpenters represented by United
Brotherhood of Carpenters and Joiners of America,
Local No. 213, AFL-CIO, are entitled to perform
the erection, assembly, and dismantling of steel
tubular section scaffolds used in the erection of
masonry walls at construction projects located at
Houston, Texas.
2. United Brotherhood of Carpenters and Joiners
of America, Local No. 213, AFL-CIO, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require the Employer,
General Masonry, Inc., to assign the above work to
carpenters represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Brotherhood
of Carpenters and Joiners of America, Local No.
213, AFL-CIO, shall notify the Regional Director
for Region 23, in writing, whether it will or will not
refrain from forcing or requiring the Employer,
General Masonry, Inc., by means proscribed by
Section 8(b)(4)(D) to assign the work in dispute to
carpenters, rather than to employees of the
Employer who are represented by Laborers Local
18.
On the record before us , we find no merit in the Employer's request for
a broad Remedial Order. Such request is thus hereby denied.