Local 1151, Carpenters

National Labor Relations Board - Board Decisions

Mar 5, 1951

188 N.L.R.B. 841 (N.L.R.B. 1951)

LOCAL 1151, CARPENTERS
Local 1151 , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, and S . J. Groves &
Sons Company and Local 435, Laborers Internation-
al Union of North America , AFL-CIO. Case 3-CD-
332
March 5, 1951
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN , AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by S. J. Groves & Sons Company'
alleging that Local 1151, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO,' violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activities with an object of forcing or re-
quiring the Employer to assign the work in dispute to
employees represented by Carpenters, rather than to
employees represented by Local 435, Laborers Inter-
national Union of North America, AFL-CIO.3Pur-
suant to notice, a hearing was held before Hearing
Officer Harriet E. Gould at Buffalo, New York, on
November 12, 1970. All parties appeared at the hear-
ing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing upon the issues. All parties waived
the filing of briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings 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:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer is a Min-
nesota corporation with its principal place of business
located in Minnesota. Its New York office is located
at 4530 Wetzel Road, P. O. Box F, Liverpool, New
York. The Employer, a general contractor in the con-
struction industry, is presently engaged in the build-
ing of heavy highway construction and bridges on the
Lakeside Beach State Park, New York, project. This
contract with the State of New York is valued in
' Hereinafter referred to as Groves or the Employer.
2 Hereinafter referred to as Respondent or Carpenters.
7 Hereinafter referred to as Laborers
841
excess of $11 million. The Employer has purchased
from outside the State of New York goods valued in
excess of $50,000, which were sent directly to the job-
site. Accordingly, the parties stipulated, 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 purposes of the Act to assert jurisdic-
tion herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Carpenters
and Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the stripping of
wooden flat arch forms which are used as temporary
structures in bridge construction. The only aspect of
the work in question is the actual separation of the
forms from the concrete.
B. Background and Facts of the Dispute
The Employer began construction on the Lakeside
Beach State project in August 1969. As a member of
the Associated General Contractors, New York State
Division, the Employer is party to master agreements
with the Carpenters and the Laborers, and employed
members of both crafts on this job. The Employer's
job superintendent, Paul Walrod, anticipated prob-
lems regarding the assignment of the work in dispute
and accordingly spoke with both Rocco Sidari, repre-
sentative of Respondent Union, and Anthony Castag-
naro, representative of the Laborers. Both Unions, on
the basis of past practice, claimed the work for their
members. Faced with these conflicting claims the Em-
ployer assigned the disputed work to a crew composed
of members of both Unions when such work began in
June 1970.4 They had worked this way for one-half
day when the carpenters refused to work with the
laborers. The stripping operation was then tempo-
rarily halted by the Employer in the belief that the
carpenters were going to walk off the job. Thereafter,
on or about July 12, the stripping operation was re-
sumed with a crew all of laborers. The carpenters then
walked off the job for a half day, but returned the
following morning. The Employer continued to per-
form the disputed work using laborers without inci-
dent until mid-September.
On or about September 19, Walrod telephoned Si-
Unless otherwise indicated , all events occurred in 1970.
188 NLRB No. 123
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dari because he had heard rumors of a work stoppage
if the Employer continued to assign the disputed work
to employees represented by Laborers. During the
conversation, Sidari confirmed that he had no choice
but to pull his men off the job on September 21. Sidari
told Walrod that he wanted to be fair and was warn-
ing him in advance so he could take any steps that
were necessary. Sidari denies this version of the con-
versation and claims that he told Walrod he was un-
happy because the Employer refused to arbitrate the
dispute and that he would be out on September 21 to
speak to his members.
On the morning of September 21, Sidari came out
to the jobsite. According to Walrod, he first spoke
with him and again reiterated that he was pulling his
men off the job. Walrod later observed Sidari address-
ing his men, after which they walked off the job. The
carpenters stayed off the job for the remainder of the
week. On September 26, the Employer sent Respon-
dent a telegram requesting men for September 28.
This request was granted, and the carpenters returned
to work on that date and have continued to work
without incident while members of the Laborers con-
tinued performing the stripping work. Sidari denies
being responsible for the work stoppage and further
denies knowing why his men walked off the job. He
contends that when he spoke to his men on September
21 he told them the status of the dispute and read to
them portions of the Carpenters' contract with the
Employer. Sidari then told the men that what they did
would be their own decision.
C. Contentions of the Parties
The Carpenters contends that the parties have
agreed to the National Joint Board procedures as the
method for adjusting the dispute. Alternatively, Car-
penters argues that if the Board does find that the
controversy is properly before it for determination
under Section 10(k), the work should be awarded to
the employees whom it represents because of area
practice. In addition, the Carpenters argues that the
award should be limited to the jobsite involved herein.
The Employer and Laborers deny that they have
agreed to submit the dispute to the National Joint
Board for settlement. The Employer maintains that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated, and, along with Labor-
ers, contends that the work should be awarded to
employees represented by Laborers based on area and
industry practice. The Employer also claims that its
assignment was based on its contract with the Labor-
ers, the Memorandum of Understanding on Concrete
Forms, 1949, between the Internationals of the Car-
penters and Laborers, efficiency, and economy of op-
eration. The Employer wants the award herein to be
coextensive with the New York Chapter of the Associ-
ated General Contractors and the major agreements
with the Laborers and Carpenters or that it extend to
cover the Unions involved in this dispute. The Labor-
ers want the award to be coextensive with the jurisdic-
tion of the competing Unions herein and cover future
jobsites within their jurisdiction.
D. Applicability of the Statute
Before making a determination of the dispute, the
Board is required to find that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated. As previously set forth, Project Superintendent
Walrod testified that Respondent' s business repre-
sentative, Sidari, told him on two different occasions
that he had no choice but to remove his men from the
job because of the assignment of the disputed work to
laborers instead of carpenters. While the foregoing is
disputed by Sidari, he admits that he told Waldrod
that he was unhappy with the Employer' s refusal to
arbitrate the dispute and would speak with his mem-
bers. Sidari denies that he told them to walk off the
job. The carpenters did not work on September 21
and remained off the job until September 28.
In a jurisdictional dispute context , the Board is not
charged with finding that a violation did in fact occur,
but only that there is reasonable cause to believe that
there was a violation.' On these facts, and without
conclusively ruling on the credibility of the testimony
in issue ,6 we are satisfied that there is reasonable cause
to believe Respondent threatened to strike and that an
object of such threat was to force the Employer to
assign the disputed work to individuals who are mem-
bers of Carpenters, rather than to those employees
who are members of Laborers.
On the basis of the entire record in this case, we find
that there is reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that the
dispute is properly before the Board for determina-
tion.'
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 various relevant factors. Certain
' Local 138, 138A, 138B, 138C, and 138IJ, International Union of Operating
Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc.) 149 NLRB 156,
158-159.
6 See Local Union No. 3, International Brotherhood of Electrical Workers,
AFL-CIO (Western Electric Company, Incorporated). 141 NLRB 888, 893.
7 Respondent contends that the Employer agreed to voluntary dispute
settlement machinery involving the National Joint Board in connection with
work assignment disputes . The Employer is a member of A.G.C. which is no
longer a party to the National Joint Board. We find, therefore , that the Board
is not precluded from making its determination in this proceeding.
LOCAL 1151, CARPENTERS
of the usual factors considered by the Board in these
cases, such as certifications, skills, and contracts, pro-
vide little, if any, basis for determining the instant
dispute. Neither Carpenters nor Laborers has been
certified by the Board as the exclusive bargaining rep-
resentative of any of Groves' employees: the requi-
site skills in stripping wooden flat arch forms are
possessed by both carpenters and laborers; and,
neither contract makes specific reference to the work
in dispute as being the work of either carpenters or
laborers. We therefore set forth below those other
factors which we find relevant in determining this
dispute.
1. Efficiency and economy of operations
The record shows that the laborers assigned to the
disputed work by the Employer are performing their
required tasks to the satisfaction of the Employer. The
skills possessed by them are sufficient for the efficient
performance of this work. The record discloses an
adequate and ready supply of the laborers available
to the Employer. On the other hand, there is a scarcity
of carpenters in the area. While the Employer has
always been given all the carpenters asked for, there
have been delays in supplying them. In addition, the
use of laborers is more economical in that their rate
is less than that of the carpenters.
2. Custom and Practice
The record shows that, as to the two Unions in-
volved herein, the Employer has no past practice since
it has not heretofore had work in their jurisdiction.
However, Employer's testimony shows the following:
where there is an agreement concerning who shall do
stripping between competing unions in other areas the
Employer will abide by it;' were there is no agree-
ment , and a dispute arises, the Employer assigns the
work to laborers. This latter approach was followed
by Groves at a project in Deposit, New York. Em-
ployer presented further evidence showing that it has
been assigning flat arch stripping work to laborers for
20 years. Employer's New York State manager, John
Kohnke, stated that beginning in the 1950's this work
has been assigned to laborers and that he, as chairman
of A.G.C.'s specifications committee, was made
aware of other employers' disputes concerning this
work and that such disputes were resolved by assign-
ment of the work to laborers. The testimony of an-
other contractor as to area practice shows that the flat
arch stripping work has been assigned to laborers
843
rather than carpenters. Kohnke also stated that the
industry practice had been to assign the disputed
work along the lines followed by the Employer.
Laborers' Representative Castagnaro confirmed
the Employer's testimony that work in dispute had
been assigned to laborers in this local area.
Carpenters' Business Manager Sidari claimed that
work at certain projects, which the other parties to this
proceeding stated was performed by laborers, was in
fact performed by carpenters. However, Sidari con-
ceded during the hearing that while he was not disput-
ing the work of stripping "wooden flat arches" he was
contending that it was related to other stripping work
which was that of carpenters . In essence , Carpenters
nonetheless claimed that area and industry practice
favored the assignment of the disputed work to car-
penters.
While it is not undisputed, the preponderance of
the evidence indicates that area and industry practice
shows that stripping wooden flat arch forms is per-
formed by laborers.
3. Employer assignment
The fact that the Employer prefers an award to its
employees represented by the Laborers is a factor
which supports the assignment of the work to such
employees.
CONCLUSIONS
Having considered all pertinent factors present
herein , we conclude that employees represented by
Laborers are entitled to perform the work in dispute.
This assignment is not inconsistent with any contrac-
tual obligation and is consistent with area and indus-
try practice, and promotes efficiency and economy of
operation. In addition, the Employer is satisfied with
the results achieved by the assignment and desires no
change in the assignment. We conclude from all of the
foregoing that the Employer' s assignment of the work
to employees represented by Laborers should not be
distrubed. Accordingly, we shall determine the exist-
ing jurisdictional controversy by awarding the work
of the stripping of wooden flat arch forms which are
used as temporary structures in bridge construction to
employees represented by Laborers rather than em-
ployees represented by Carpenters. In making this
determination, we are awarding the work in question
to employees represented by Laborers, but not to that
Union or its members. Our present determination is
limited to the particular controversy which gave rise
to this proceeding.
In New York 's Rochester-Monroe Council and other scattered areas not
involved herein , the work was performed by a composite crew of carpenters
and laborers pursuant to agreement of the parties
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE means proscribed by Section 8(b)(4)(D) of the Act, to
force or require S. J. Groves & Sons Company to
assign the above work to employees represented by
Local 1151, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Local 1151, United Broth-
erhood of Carpenters and Joiners of America, AFL-
CIO, shall notify the Regional Director for Region 3,
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 employees represented by Local 1151,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, rather than employees repre-
sented by Local 435, Laborers International Union of
North America, AFL-CIO.
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 case,
the National Labor Relations Board hereby makes
the following Determination of Dispute:
1. Employees of S. J . Groves & Sons Company, who
are represented by Local 435, Laborers International
Union of North America , AFL-CIO, are entitled to
perform the work of stripping wooden flat arch forms
which are used as temporary structures in bridge con-
struction in the S. J. Groves & Sons Company project
at Lakeside Beach State Park , New York.
2. Local 1151, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, is not entitled, by