Carpenters Local Union No. 1849

National Labor Relations Board - Board Decisions

Dec 27, 1978

239 N.L.R.B. 1053 (N.L.R.B. 1978)

CARPENTERS LOCAL UNION NO. 1849
Carpenters Local Union No. 1849, United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO and Guy F. Atkinson Company/Wright-Schuc-
hart-Harbor. Case 19-CD-315
December 27, 1978
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, based on
a charge filed on August 1, 1978, by Guy F. Atkin:;on
Company/Wright-Schuchart-Harbor, herein called
the Employer, alleging that the Carpenters Local
Union No. 1849, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called the
Carpenters, violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing the Employer to assign certain work to
employees represented by the Carpenters rather than
to employees represented by the Laborers' Interna-
tional Union of North America, Local No. 348, affi-
liated with AFL-CIO, B & CT, MT & IU Depts. and
CLC, herein called the Laborers, the Intervenor
herein.
Pursuant to notice, a hearing was held before
Hearing Officer Gerald D. Dulz on September 6,
1978. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to present evidence
bearing on the issues. Thereafter, the Employer and
the Carpenters filed briefs with the Board.
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 au-
thority in this proceeding 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 Employer is a joint venture engaged in the
construction of nuclear reactor containment struc-
tures for Washington Public Power, the owner and
operator of a nuclear power generating plant at Han-
ford Reservation, Richland, Washington. During the
past year, a representative period, Guy F. Atkinson
Company, a Nevada corporation, and Wright-Schuc-
hart-Harbor, a partnership, individually and collec-
tively realized gross revenues in excess of $500,000,
and during the same period each caused in excess of
$50,000 in goods and materials to be shipped directly
to it from points outside the State of Washington.
Accordingly, we find that the Employer is 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.
I. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Car-
penters and the Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. The Work in Dispute
The work in dispute is "tailing the saw" ' at the
fabricating yard and sawshop located at the Employ-
er's construction site, Washington Public Power Sys-
tem, Units 1 and 4, Hanford Reservation, Richland,
Washington.
B. Background and Facts of the Dispute
The sawshop, where the work in dispute is per-
formed, was set up at the above-described construc-
tion site in November or December 1977. As with
most construction projects, a prejob conference was
held, but the subject of "tailing the saw" was not
discussed at that time, nor was it discussed with the
Carpenters or Laborers prior to January or February
1978. During the setup stage, the sawshop was man-
ned by a composite crew of carpenters and one la-
borer. There was, however, no rigid adherence to
craft lines, as is quite common during this phase on a
construction site; the record reveals that, while a la-
borer was the first employee to tail the saw,2 the work
was not perfomred by him in response to any specific
assignment by the Employer. The record also indi-
cates that a carpenter was later put on the job by the
shop foreman after he was directed to do so by a
Carpenters official.
In May 1978, a Laborers steward informed Max
The parties agree that "tailing the saw" involves at least assisting the
sawyer in feeding the boards into the saw and also helping him pull the
boards through and from the saw. The Employer contends, however, that
the job includes the additional tasks of carrying materials into the sawyard.
taking out the sawdust, and sweeping the floors. The Carpenters are not in
agreement with this expanded definition.
2A laborer performed the work in dispute for a period of approximately
8 hours.
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teuton, the Employer's labor relations manager at
the project, that a carpenter and not a laborer was
tailing the saw. Teuton testified that he had been un-
der the impression that a laborer had been doing this
job at all times and that, after he received informa-
tion to the contrary, he notified the Carpenters that
the work in question was to be performed by employ-
ees represented by the Laborers.
On June 1, 1978, in response to this assignment,
members of the Carpenters walked off the job. They
returned the following day, when the Employer an-
nounced that it would defer implementation of the
assignment to the Laborers, pending the resolution of
the dispute.'
During the following weeks, the parties met to at-
tempt to resolve this dispute as well as another one
which concerned the Laborers practice of distribut-
ing power tools and handling materials used by the
Carpenters.4 This latter dispute was resolved on June
26, 1978, leaving unsettled the question of who
should tail the saw.
In the second week of July 1978, Project Manager
Rodney Aschenbrenner and the Carpenters assistant
business representative, Dean Dickson, had a con-
versation about the Employer's intention to assign a
laborer to tail the saw because of productivity re-
quirements. In response to Aschenbrenner's verbal
reaffirmation of the telegram which notified the Car-
penters of the job assignment, Dickson said, "We
don't want to see the job shut down. Can you delay
this [assignment to the Laborers] so we can attempt
to get the internationals-force the internationals to
action a little faster." He further stated that, "I think
they [the carpenters] will go off if you put the laborer
on the saw." On July 31, 1978, the Employer again
assigned the work in dispute to employees repre-
sented by the Laborers. Thereafter, on August I and
2, 1978, the Carpenters responded to the Employer's
work assignment to employees represented by the
Laborers by walking off the job.
C. Contentions of the Parties
The Employer and the Laborers contend that a
jurisdictional dispute exists and that there is reason-
able cause to believe that Section 8(b)(4)(D) of the
3Since May 28, 1978, the sawyer has worked without the assistance of a
saw tailer.
4On June 14, 1978, Del Long, business representative of the Carpenters
Local distributed a letter, by hand and mail, to the carpenters on the jobsite.
stating, inter alia, that the Local's bylaws would be strictly enforced because
of the large number of "jurisdictional disputes," and that anyone allowing a
noncarpenter to help him "do carpenter's work" could be "subject to
charges in this local union."
In response to this letter, the carpenters engaged in a work slowdown
from June 15-20, 1978, by refusing to use power tools.
Act has been violated, based upon Dickson's state-
ment concerning a walkoff and upon a portion of the
Carpenters June 14, 1978, letter, alluded to in foot-
note 4, supra. The Employer and the Laborers assert
that the disputed work should be awarded to employ-
ees represented by the Laborers on the basis of the
Employer's past practice and current assignment of
the work, the area and industry practice, the level of
skill required, and economic considerations.
The Carpenters assert that, while the Local itself
did not engage in conduct proscribed by Section
8(b)(4)(D) of the Act, the employees it represents did.
Therefore, it argues that, even if the Board does not
find the Carpenters to be in violation of the Act, it
would have jurisdiction herein. Further, it contends
that the work of "tailing the saw" should be assigned
to the employees it represents on the basis of its alle-
gation that the Employer originally assigned the dis-
puted work to the Carpenters, the area practice and
inconsistent employer practice, the collective-bar-
gaining agreement, and considerations of safety and
economics.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable cause
to believe that Section 8(bX4)(D) has been violated 5
and that the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
As stated above, the carpenters walked off the job
on two occasions in direct response to the Employ-
er's assignment of the work in dispute to the Labor-
ers. Further, as stated above, prior to the second
walkout, the Carpenters assistant business represen-
tative, Dickson, in conversation with Project Manag-
er Aschenbrenner, stated, "We don't want to see the
job shut down. Can you delay this [assignment to the
Laborers] so we can attempt to get the internation-
als-force the internationals to action a little faster."
He also said, "I think they (the carpenters] will go off
if you put the laborer on the saw." Therefore, based
on the foregoing and the record as a whole, we find
that the Carpenters sought to force or require the
assignment of the disputed work to employees repre-
sented by it rather than to employees represented by
the Laborers. Accordingly, we find reasonable cause
exists to believe that the Carpenters violated Section
8(b)(4XD) of the Act.
With respect to the existence of a voluntary
method for the adjustment of the dispute, we find
that such an agreed-upon method does not exist, in-
5Contrary, then, to the Carpenters assertion, the Board cannot assert
jurisdiction on the basis of a grant from the parties.
1054
CARPENTERS LOCAL UNION NO. 1849
asmuch as all the parties stipulated that the Joint
Board for the Resolution of Jurisdictional Disputes
was not operative at any time material to this dis-
pute. Further, no party contends to the contrary. Ac-
cordingly, we conclude 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 disputed work after
giving due consideration to and balancing all rele-
vant factors involved.6 The Board has held that its
determination in a jurisdictional dispute is an act of
judgment based on commonsense and experience in
weighing these factors.7 The following factors are rel-
evant in making a determination of the dispute be-
fore us.
I. Certification and collective-bargaining
agreements
Neither of the labor organizations herein involved
has been certified as the collective-bargaining repre-
sentative for a unit of the Employer's employees.
However, at all times material herein, the relation-
ship between the Employer and these unions has
been governed by collective-bargaining agreements.
Both of these agreements contain identical clauses
pertaining to jurisdictional disputes:
Where a decision of record applies to the dis-
puted work or where an agreement of record be-
tween the disputing trades applies to the disput-
ed work, the [Employer] shall assign the work in
accordance with such agreement or decision of
record. Decisions of record are applicable to all
trades. Agreements of record are applicable only
to the parties signatory to such agreements.
Where no decision or agreement applies to the
work, the Employer shall assign the disputed
work in accordance with the prevailing practice
in the locality. The locality for the purpose of
determing the prevailing practice shall be de-
fined ordinarily to mean the geographical juris-
diction of the local Building and Construction
Trades Council in which the project is located.'
6
N LR. B. v. Radio & Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers, A FL-CIO [Columbia Broad-
casting System], 364 U.S. 573 (1961).
International Association of Machinists Lodge No 1 743, A FL- CIO J. A
Jones Construction Company). 135 NLRB 1402, 1411 (1962)
sArt. IX, sec. 2(C). Associated General Contractors of America. Inc..
Inland Empire Chapter, Carpenter-Millwnghts-Piledrivers. 6/1 I77
-
5/31/80; art. XVI, sec. 2(A). Associated General Contractors of America.
Inc.. Multi-Craft Construction Labor Agreement, Cement Masons. Labor-
The above provision provides that, in the absence of
any decision or agreement of record applicable to the
work in dispute, such work shall be assigned in ac-
cordance with the "prevailing practice in the locali-
ty." The "locality" is defined as "the geographical
jurisdiction of the local Building and Construction
Trades Council in which the project is located." The
record herein does not provide us with the informa-
tion necessary to determine the appropriate locality.
Thus, the collective-bargaining agreements cannot be
relied on to determine the assignment of the disputed
work.
2. Employer's assignment and practice
As pointed out, supra, the Employer failed to as-
sign the disputed work to employees represented by
either the Carpenters or the Laborers at the outset of
the job: but later the Employer made a specific as-
signment to its employees represented by the Labor-
ers. Indeed, the record herein reveals that the Em-
ployer has traditionally assigned "tailing the saw" to
its employees represented by the Laborers.9 Thus, the
Employer's assignment and practice favors awarding
the disputed work to employees represented by the
Laborers.
3. Area and industry practice
Each of the competing unions claims that the area
and industry practice favors assignment of the dis-
puted work to individuals represented by it. As indi-
cated above, the identical provisions in the two rele-
vant collective-bargaining agreements provide that
the "locality" for the purpose of determining the pre-
vailing area practice is "the geographical jurisdiction
of the local Building and Construction Trades Coun-
cil in which the project is located." However, the rec-
ord in the instant case does not adequately describe
the boundaries of the "locality" herein, thereby ren-
dering it impossible to make a determination relative
to whom the assignment should be made based on
this factor. There is evidence in the record supporting
the claims of both Unions. In view of the above, we
cannot determine which Union's claim has merit.
ers, Operating Engineers-Building, Heavy & Highway Construction,
6/1/77-5/31 ,80.
9On the few occasions in the past when the Employer has utilized a
carpenter in this positon. the Employer has been part of a joint venture.
However, in these situations. it was either not the sponsor, or alternatively,
it shared sponsorship responsibilities In a joint venture situation. it is the
sponsor who sets the labor relations policies. Therefore, in the past, when a
carpenter was utilized to tail the saw, the Employer herein was not the
sponsor. and the assignment made was the choice of the Employer's partner.
Further, it appears from the record that. when the Employer shared spon-
sorship responsibilities and a carpenter performed the work in dispute, this
assignment was an exception to the Employer's regular practice of assigning
such work to employees represented by the Laborers
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, we conclude that the area and industry prac-
tice is not helpful in deciding who should perform
the work in dispute.
4. Relative skills, safety, and efficiency and
economy of operations
The Carpenters Union argues that the use of an
apprentice carpenter would be safer and more eco-
nomical. It supports this assertion with the facts that:
(1) an apprentice carpenter has greater knowledge
than a laborer of the operation of the saw, and there-
fore safety is increased; (2) a journeyman laborer is
paid at a higher rate than an apprentice carpenter;
and (3) the training an apprentice carpenter would
receive while tending the saw would benefit the Em-
ployer in the long run by decreasing the shortage of
trained journeymen.
The Employer disputes the Carpenters state-
ments. It argues, on the contrary, that: (1) the skill
requirements of a carpenter are not necessary for the
position in question; (2) the skills learned from "tail-
ing the saw" do not contribute to the training of a
craftsman; (3) the assignment of the work in dispute
cannot be guaranteed to be assigned to the least cost-
ly employee in the craft, and therefore, if a skilled
workman were utilized for unskilled work, it would
be wasteful and costly; and (4) there is no credible
evidence that a apprentice carpenter would be a safer
worker than a laborer. The record does not provide
sufficient information to resolve the conflict between
the positions set out above. Thus, we cannot rely on
the relative skills, safety efficiency, and economy of
operations in making the assignment of the work in
dispute.
Conclusion
Upon the record as a whole and after full consider-
ation of all relevant factors involved, we conclude
that the employees of the Employer who are repre-
sented by the Laborers are entitled to perform the
work in dispute. In reaching this conclusion, we have
relied particularly on the Employer's preference of
assigning the disputed work to its employees repre-
sented by the Laborers, and the fact that this prefer-
ence is consistent with the Employer's past practice.
We shall, therefore, determine the dispute before us
by awarding the work involved herein to those em-
ployees represented by the Laborers, but not to that
Union or its members. In consequence, we also find
that the Carpenters is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require the Employer to assign the disputed work to
employees represented by it. Our present determina-
tion is limited to the particular dispute which gave
nse 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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Guy F. Atkinson Company/
Wright-Schuchart-Harbor, who are currently repre-
sented by the Laborers' International Union of
North America, Local No. 348, affiliated with AFL
CIO, B & CT, MT & IU Depts. and CLC, are enti-
tled to perform the work of "tailing the saw" at the
fabricating yard and sawshop located at the Guy F.
Atkinson Company/Wright-Schuchart-Harbor con-
struction site, Washington Public Power System,
Units I and 4, Hanford Reservation, Richland,
Washington.
2. Carpenters Local Union No. 1849, 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 Guy
F. Atkinson Company/Wright-Schuchart-Harbor, to
assign the above work to employees represented by
that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Carpenters Local
Union No. 1849, United Brotherhood 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 Guy F.
Atkinson Company/Wright-Schuchart-Harbor, by
means proscribed by Section 8(b)(4)(D) of the Act, to
assign the disputed work to employees represented
by it rather than to employees represented by the
Laborers' International Union of North America,
Local No. 348, affiliated with AFL-CIO, B & CT,
MT & IU Depts. and CLC.
1056