Carpenters of Northwestern Montana

National Labor Relations Board - Board Decisions

Mar 7, 1973

202 N.L.R.B. 239 (N.L.R.B. 1973)

CARPENTERS OF NORTHWESTERN MONTANA 239
Carpenters District Council of Northwestern Montana,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Lilienthal Insulation Com-
pany) and Cascade Employers Association, Inc.
Case 19-CD-207
March 7, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Cascade Employers Associa-
tion, Inc., on behalf of Lilienthal Insulation Compa-
ny, hereinafter referred to as the Employer, alleging
that Carpenters District Council of Northwestern
Montana, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, hereinafter referred
to as Carpenters or the Union; 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 insulation installa-
tion work to employees represented by Carpenters
rather than to the unrepresented employees of
Lilienthal Insulation Company who were working
under a valid apprenticeship agreement with the
State of Montana.
Pursuant to notice, a hearing was held before
Hearing Officer Robert F. Stange on November 14,
1972. 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. Thereafter, briefs were filed on
behalf of the Employer and Carpenters.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Lilienthal Insulation Company is a sole proprietor-
ship owned by Robert L. Lilienthal, engaged in the
installation of various types of thermal insulation in
buildings under construction in the Kalispell, Mon-
tana, area. David Lindsey was the builder and
Arthur Neufeld the general contractor of the Build-
ers Discount Center job involved herein . Neufeld
hired Lilienthal to install insulation on the project.
The parties did not stipulate that the Employer met
the Board's jurisdictional standards . We find that by
combining the dollar volume of materials purchased
by Lilienthal Insulation Company from outside the
State of Montana, which was approximately $48,000
through October 1972, with that of Neufeld Builders,
the general contractors on the job, which purchased
approximately $20,000 worth of materials for the job,
it is clear that these employers have been at all
material times engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction herein. Bartenders & Culinary Workers
Union, Local 595, Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO (Arne
Falk, Inc.), 161 NLRB 1458.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated , and we find , that the
Carpenters is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
At the time of the dispute the Employer was
employing one man, Terry Hodges, as an insulation
apprentice under an apprenticeship agreement with
the State of Montana. About the first week in August
1972,1 Union Representative John Sudan saw Lilien-
thal's truck parked at the construction site. Sudan
went to Arthur Neufeld, the general contractor, and
asked Neufeld if he knew he was employing someone
who was not meeting union conditions. Neufeld said
that the Employer was union and Sudan commented
that that was true, but that he was employing Terry
Hodges who was nonunion. Sudan then said that the
Union might have to put up an informational picket
on the job.
Approximately August 11, Sudan returned to the
construction site and told Neufeld that there was
going to be a picket at the site, but that it would be
strictly against the Employer and not against
Neufeld Builders.
At about the same time Sudan wrote letters to the
various subcontractors on the job explaining the
informational nature of the picket and that the
picketing was only against Lilienthal and did not
affect the other subcontractors.
On Tuesday, August 15, Sudan came to the
construction site and, after checking to see that
Hodges was there, put the picket up. On seeing the
1 All dates referred to hereinafter are in 1972.
202 NLRB No. 29
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket, three of the carpenters employed by Neufeld
left the job. A number of other employees who were
not carpenters left at this time also. They went to
Neufeld's house and explained that they were leaving
because of the picket.
Neufeld then went to the construction site to
investigate the trouble. While there, he had a
conversation with Sudan in which Sudan, in Neu-
feld's words, "encourag[ed] me to use Carpenters."
Neufeld said that the reason he let out the work to
the Employer was in order to save a little money.
Sudan stated that the insulation work was carpenters'
work and should be given to them.
David Lindsey, the builder, was also there at this
time. At the time of the picketing, Lilienthal had
completed work for Neufeld and was doing the same
type of work for Lindsey. Sudan then talked to
Lindsey and explained to him that the only way to
get the picket off the job was to remove the Employer
from the site. Sudan also said that he wanted a
written statement that the Employer would not work
any more on this job. At about this time, the
Employer left the job. Lindsey and Sudan then
agreed that if Lindsey would promise that Lilienthal
would not be back, the picket would be removed.
Lindsey promised this and the picket was removed.
As they were leaving, Sudan commented that as long
as Lilienthal was no longer working, he had
carpenters who could do the job. After some
discussion, Neufeld's carpenters agreed to finish the
insulation installation on a cost-plus basis.
B. The Work in Dispute
This dispute concerns the assignment of the work
of putting up both blanket and roll type insulation at
the Builders Discount Center in Kalispell, Montana.
C. Contentions of the Parties
The Employer takes the position that it assigned
the work to "Insulation Apprentices" under a valid
agreement with the State of Montana. It maintains
that it is not employing and has never employed
carpenters to do the work. It contends that it can
perform the work efficiently and in a workmanlike
manner by assigning the work to insulation appren-
tices.
The Carpenters, on the other hand, contend that
the dispute is not a jurisdictional dispute, but is an
effort on the part of the Carpenters to maintain area
standards. The Carpenters states that the real issue is
that Lilienthal Insulation Company is paying less
than standard area wages for work which carpenters
perform. The Union maintains that the object of its
picketing was to assure that the Employer paid wages
which were equal to those paid to carpenters to do
the same type of work. It maintains that although
several people walked off the job, it did not intend
this to happen and that the men who did walk off the
job did so of their own accord and with no pressure
from the Union.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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
and that the parties have not adjusted or agreed upon
methods for the voluntary adjustment of the dispute.
Contrary to the Union's contention that it was only
engaged in area standards picketing, it is clear that
its actions were inconsistent with such a contention.
Thus, on August 15, the day of the picketing, Union
Representative John Sudan told David Lindsey that
the only way to get the picket off the job was to
remove the Employer from the site and further said
that when Lilienthal was no longer working on the
job, there were carpenters who could do the job, and
asked if they could have the work. Also, he stated to
Neufeld that the work in dispute was carpenters'
work and, in Neufeld's words, "encourag[ed] me to
use Carpenters." Accordingly, we find that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred.
We further find that the parties have not adjusted
or agreed upon a method for the voluntary adjust-
ment of the dispute. The Union contended that the
Employer was bound by the terms of the contract
between the Union and the Flathead Contractors
Association Working Agreement for Building Con-
struction, and that pursuant to that agreement the
Employer' should have submitted the determination
of this dispute to the Joint Board. We find, however,
that the record does not show that the Employer is
signatory to that contract or bound thereby to submit
grievances to the National Joint Board.
Accordingly, for the above reasons, we find the
dispute is properly before the Board for determina-
tion pursuant to 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 due consideration to all relevant factors.2 The
following factors are relevant in determining the
dispute herein:
2 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402.
CARPENTERS OF NORTHWESTERN MONTANA 241
1. Collective-bargaining agreement
Although the Employer is a member of the
Flathead Contractors Association, which has a
contract with the Carpenters District Council of
Northwestern Montana, the Employer did not sign
the agreement. Lilienthal testified that the associa-
tion consists of both union and nonunion members
and the Employer contends that it is not bound by
the contract. Thus, the factor of a collective-bargain-
ing agreement is not helpful to our determination.
2. Custom and practice in the industry
The Union testified that the work in dispute has
been the work of carpenters since about 1946. The
Carpenters have a classification for Insulation
Apprentice in their apprenticeship program.
The evidence shows that Robert Lilienthal, presi-
dent of Lilienthal Insulation Company, had em-
ployed Terry Hodges under a valid apprenticeship
agreement with the State of Montana since August
1971.
We find that while the evidence of area practice is
inconclusive, the fact that there is a valid apprentice-
ship agreement with the State of Montana favors the
awarding of the work to the Employer's unrepresent-
ed employees.
3. Relative skills, efficiency, and
economy of operations
Both the Employer and the Union have men who
are capable of doing the job. The Employer contends
that he can do the job more efficiently and at less
cost with the employees whom he trains to install
insulation under the State 's apprenticeship program.
This factor favors award of the work to the
Employer's unrepresented employees.
CONCLUSION
Upon the entire record in this proceeding, after full
consideration of the relevant factors, particularly the
efficiency 'and economy of operations , and the
Employer's apprenticeship agreement with the State
of Montana, we conclude that the unrepresented
employees employed by the Employer are entitled to
the work in dispute . In making this determination,
we award the work to the employees of the Employer
who are being trained under the Insulation Installer
Apprenticeship Agreement with the State of Montana.
In making this determination we award this work
to the employees trained by this Employer under the
apprenticeship agreement and not solely to this
single employee . Our present determination is limited
to the particular controversy which gave rise to this
proceeding.
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
makes the following Determination of Dispute:
1. The unrepresented employees of Lilienthal
Insulation Company, who are employed under the
terms of its apprenticeship agreement with the State
of Montana, are entitled to install insulation at the
Builders Discount Center.
2. Carpenters District Council of Northwestern
Montana, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Lilienthal to assign the above-
described work to employees who are represented by
the Carpenters.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Carpenters District
Council of Northwestern Montana, United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO, shall notify the Regional Director for
Region 19 , in writing, whether or not it will refrain
from forcing or requiring Lilienthal , by means
proscribed by Section 8(bX4XD) of the Act , to assign
the disputed work to employees it represents rather
than to the unrepresented employees employed by
Lilienthal under the apprenticeship agreement.