Local 46, Wood, Wire & Metal Lathers Int'l Union

National Labor Relations Board - Board Decisions

Apr 13, 1962

136 N.L.R.B. 1072 (N.L.R.B. 1962)

1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we perceive no reason whatsoever for disturbing Wilson's and Tur-
man's method of operations.
Accordingly, we shall determine the existing jurisdictional dispute
by deciding that the present employees of Wilson and Turman, rep-
resented by the various unions forming the Construction Trades,
rather than the workmen represented by District 50, are entitled to
these contractors' work at the project in question. In making this
determination, we are assigning the disputed work to the present com-
plement of employees, but not to the members of the various labor
organizations constituting the Construction Trades.
In view of the above, we find that District 50 was not and is not
entitled by means proscribed by Section 8(b) (4) (D) to force or re-
quire Wilson or Turman to assign the work in dispute to its members
rather than to the present complement of employees.
DETERMINATION OF THE DISPUTE
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case , the Board makes the following Determination
of Dispute pursuant to Section 10(k) of the Act:
1. Employees currently employed by Wilson and Turman, currently
represented by Construction Trades Unions , are entitled to perform
the work required by these contractors at the Williamson , Wrest Vir-
ginia, flood control project.
2. United Mine Workers of America, District 50, is not and has
not been lawfully entitled to force or require Turman Construction
Company or Wilson Construction Company to assign the disputed
work to workmen currently represented by District 50.
3. Within 10 days from the date of this Decision and Determination
of Dispute , United Mine Workers of America , District 50, shall notify
the Regional Director for the Ninth Region, in writing, whether or
not it will refrain from forcing or requiring Turman Construction
Company and Wilson Construction Company by means proscribed by
Section 8(b) (4) (D ) to assign the work in dispute to its members.
Local 46, Wood, Wire and Metal Lathers International Union,
AFL-CIO, and Brian Dillon , its Business Representative and
Precrete, Inc. Case No. f3-CD-216. April 13, 1962
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10(k) of the Act, which pro-
vides that, "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4)_(D) of sec-
tion 8(b), the Board is empowered- and directed to hear and determine
136 NLRB No. 92.
LOCAL 46, WOOD, WIRE & METAL LATHERS INT'L UNION 1073
the dispute out of which such unfair labor practice shall have
arisen, . ..."
On May 19, 1961, Precrete, Inc., herein called the Employer, filed
with the Regional Director for the Second Region a change alleging
that Local 46, Wood, Wire and Metal Leathers International Union,
AFL-CIO, herein called Local 46, and its business representative,
Brian Dillon, had violated Section 8(b) (4) (i) and (ii) (D) of the
Act, by inducing or encouraging employees to engage in a strike or a
refusal to perform services, and by threatening, coercing, and restrain-
ing persons engaged in commerce, with an object of forcing or requir-
ing the Employer to assign the work of installing metal reinforcing
material to members of Local 46, rather than to members of Local 1175,
International Hod Carriers, Building and Common Laborers Union
of America, AFL-CIO, herein called Local 1175.
Thereafter, pursuant to section 10(k) of the Act and Sections 102.89
and 102.90 of the Board's Rules and Regulations, Series 8, as amended,
the Regional Director investigated the charge and provided for an
appropriate hearing upon due notice to all the parties. The hearing
was held before Joseph I. Nachman, hearing officer, between June 21
and 28, 1961. Local 1175 was permitted to intervene as a party in
interest to the proceeding. 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. The
rulings of the hearing officer made at the hearing are free of prejudicial
error and are hereby affirmed. Local 46 filed a brief which was duly
considered by the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
The Business of the Employer
1. Precrete, Inc., is engaged at Astoria, Long Island, New York, in
the manufacture and sale of prestressed concrete products. Annually,
the Employer purchases raw materials valued in excess of $50,000
which are shipped to its plant from points outside the State of New
York. We find that the Employer is engaged in commerce and that
it will effectuate the policies of the Act to assert jurisdiction in this
proceeding.
2. Locals 46 and 1175 are labor organizations within the meaning
of the Act.
3. The dispute :
The Work Claimed by the Two Competing Unions
One of the processes of the Employer's operations at its Astoria,
Long Island, plant, referred to as place and tie, is the work in dispute
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Local 46 and Local 1175. In the manufacture of prestressed
concrete products, consisting of columns, beams, slabs, retaining walls,
and bridge members, all of which are used by customers of the Em-
ployer who are in the construction industry, wire strands, or cables are
run lengthwise in a form or bed, which is from 450 to 600 feet in length.
In the Astoria yard there are four such beds, with steam, electric, and
water lines running through them. After the strands are strung from
the bed's deadend to the loose or jacking end, the strands are pulled
taut by machine which places a stress or tension of approximately 7
tons on each of the strands. Steel reinforcing rods which have been
cut and bent at the plant to specified size are then placed horizontally
across and vertically against the strands and are tied to them with light
wire. After bulkhead forms are placed in the bed, concrete is poured
into the bed, steam is applied, and after the concrete has hardened, the
pressure on the wire strand is released, causing the strands to endeavor
to contract to the original size, thus creating a prestressed concrete
product.
During May 1961, when the charge herein was filed, laborers em-
ployed by the Employer, who are members of Local 1175 and repre-
sented under a collective-bargaining contract between the Employer
and Local 1175, were engaged in placing and tieing the steel rods to
the wire strands. Lathers employed by the Employer's recently formed
affiliated company, known as Cut and Bend, Inc., which is adjacent to
the plant, performed the cutting and bending of the steel rods. The
lathers are represented by Local 46 and there is no dispute with respect
to their cut and bend operations. The dispute centers only on the work
'of placing and tieing, now being done by laborers and claimed by the
lathers.
Background of the Dispute; Evidence of the
Charged Illegal Conduct
Since 1954, when the Employer was established, lathers who were
members of Local 46 did all the metal work of cutting and bending,
including the disputed placing and tieing operation. Except for a
short period in 1957, when the Employer was bound by an association-
wide bargaining contract with Local 46, no agreement existed, al-
though the Employer paid the wage rate and observed other terms
and conditions of employment negotiated by Local 46 with other com-
panies. Similar recognition was extended by the Employer to the
Carpenters Union and to the Operating Engineers, both of which also
had members employed by the Employer. A written contract with
Local 1175 covering laborers was in effect between July 1954 and July
1960.
For a number of months in 1959, the Employer attempted to per-
suade representatives of Local 46 that it could not operate econom-
LOCAL 46, WOOD, WIRE & METAL LATHERS INT'L UNION 1075
ically without some reduction in wage rates to the lathers. The Em-
ployer proposed that Local 46 accept "shop" rates, as distinguished
from the higher "construction" rates, that the Employer had been
paying to the lathers. The Employer's competitors, all of whom were
located outside of Local 46's geographical jurisdiction, were set up on
,a shop, rather than a craft, basis and paid the lower hourly rate.
Local 46 refused this proposal and the Employer, for that exactly an-
nounced economic reason, closed down its entire plant on December 30,
1959, and released all of its employees.
On January 5, 1960, in order to complete an unfinished job for a
customer whose requirements were unexpectedly advanced, the Em-
ployer reopened its plant and hired laborers to perform all of the work
previously assigned to the lathers, including the disputed work of
placing and tieing. It continued to operate in this manner until
February 8, 1960, when it was shut down by a picket line established
by Local 46.1
The Precrete plant reopened on March 15, 1961, and resumed its
manufacture of prestressed concrete products. Cut and Bend, Inc.,
which was established simultaneously in an adjacent yard, started to
perform all the cutting and bending of rods for Precrete, as well as for
two other affiliated companies of Precrete, and for this purpose hired
lathers who were members of Local 46 and executed an agreement
covering this work. As work in these adjacent yards progressed, the
requisite supply of rods, already cut and bent, were delivered to Pre-
crete, where lather foremen of Local 46 and laborers of Local 1175
placed and tied the reinforced material onto the prestressing beds.
Again, shortly after March 15, Local 46 protested the use of laborers
on the place and tie operation and threatened O'Rourke, Precrete's
president, with picketing. Precrete took the position that it was
assigning the work demanded by Local 46 in accordance with a settle-
ment agreement with Local 46, dated November 30, 1960.
The parties had several meetings in an effort to adjust their dif-
ferences, but without results. Local 46 began picketing Precrete on
May 19, 1961, until such picketing was enjoined on June 1, 1961, by
a Federal district court in a Section 10 (1) proceeding. It is undis-
puted that most of Precrete's employees refused to cross the picket
line and virtually all of its manufacturing operations ceased.
Contentions of the Parties
The Employer contends that placing and tieing wires in its opera-
tions requires very little skill and can therefore be adequately pei'-
1In Precrete, Inc., 132 NLRB 986, the Board dismissed a complaint, based on charges
filed by Local 46 and certain discharged latheis, which alleged violations of Section
8(a)(3), (5), and (1) based upon the foregoing events
641795-63-vol. 136-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed by its laborers; that the wage rate of laborers are lower than
those of lathers, and, as the former adequately satisfy the Employer's
production requirements, its asserted economic needs must permit the
present assignment to stand; that the dispute between it and Local 46
on this question is one of long standing and has been voluntarily
settled by a contract which provides for this very assignment; and that
Local 46 now is merely attempting to evade its clear, written contrac-
tual obligation.
Local 46 argues that the settlement agreement is at best "ambiguous"
as to the disputed work and therefore not determinative here. It also
rests its claim on behalf of lathers on the ground that they in fact used
to perform this very work for this very company for some years, that
the work was arbitrarily taken away from them by this employer, and
that in the geographic area of New York City there is an established
practice and custom of this precise work being performed by lathers
represented by Local 46.
Local 1175, whose members are now doing the work, advances its
current collective-bargaining contract, entered into on January 10,
1961, with the Employer in justification of the assignment.
Applicability of the Statute
Section 10 (k) of the Act empowers the Board to hear and determine
the dispute out of which Section 8(b) (4) (D) charges have arisen.
However, 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 violated.
The charge here alleges that by threatening Precrete with picketing,
and by inducing and encouraging its employees to engage in a strike,
all with an object of forcing the Employer to assign certain work to
Local 46 lathers, rather than to laborers represented by Local 1175,
Local 46 has violated Section 8 (b) (4) (i) and (ii) (D) of the Act.
The evidence of a direct threat to the company officials and of strike
activities is clear and undisputed. Local 46 contends there is no proof
of illegal object and that all it sought to achieve by its economic pres-
sure was to restore to work those of its members who had been released
by the Company. The record in its entirety, however, shows without
reasonable question that the dispute was not limited to a particular
employee or to several, that instead it extends without limit wherever
the type of work involved may be performed by this Company or any
of its affiliated companies, and that it centers in the uncertain area of
work falling between cutting and bending assignments performed by
lathers and concrete pouring assignments concededly proper for la-
borers. In the light of these considerations, and in view especially of
a settlement agreement made between the parties, we find no merit in
Local 46's request that the notice of hearing be quashed.
LOCAL 46, WOOD, WIRE & METAL LATHERS INT'L UNION 1077
Accordingly, 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.
Merits of the Dispute
The principal ground advanced by the lathers in support of the
claim that they are now entitled to the disputed work is the pertinent
fact that from 1954 through 1959 they did the work, and that each time
the Employer assigned it to laborers, the lathers protested through
their own union. From this fact alone it follows that the lathers were
sufficiently skilled to do the work to the Employer' s complete satis-
faction. However, there is no evidence that the laborers do not also
possess equal skill and competence in tieing and placing of reinforce
materials on this particular jobsite; indeed, it appears that at two
other locations where similar work is performed by affiliated com-
panies, laborers do perform this type of work satisfactorily.
As further proof of its traditional prerogative as representative
of employees doing this type of work, and of the ancient work claims
of the lathers, Local 46 also advanced both its present and former
constitutions . Thus, both the 1960 constitution and an earlier one,
effective back in 1941, expressly cover "installation of reinforced con-
crete construction including . '.. the making of hangers, clips and
stirrups . . . the cutting, bending and setting of all iron and steel
and of metal wire lathe and mesh used in construction of reinforced
concrete. . . ." Against this, there was no showing that the laborers,
or their Local 1175, traditionally made jurisdictional claims to like
work, although it continually argued with Precrete that its members
were qualified to do the work.
The lathers also rely upon a decision rendered in 1920 by the Na-
tional Board for Jurisdictional Awards in the building industry, a
predecessor of the present National Joint Board for the Settlement
of Jurisdictional Disputes in the Building and Construction Iudustry.
In a dispute between the Wood, Wire and Metal Lathers International
Union against Bridge and Structural Iron Workers International
Association, that Board held in favor of the Iron Workers. It added
at that time, however,
In such cities and localities as are covered by existing agreements
with employers awarding lathers control over reinforced con-
crete construction, these agreements are to be maintained invio-
late until the date of their expiration, after which this decision
shall prevail.
This 1920 award does not appear to have been disturbed, and, while
it does have a certain pertinence even today, there are a number of
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons why we cannot afford it too much weight in deciding the dis-
pute now before us. It does not involve any claim for work by labor-
ers, or their traditional union. Moreover, while a continuing respect
is accorded to the Lathers Union, the reserved exception in this ruling
favoring the Iron Workers is expressly limited to whatever agree-
ments were then in existence between the Lathers Union and and any
employer or employer group. The Employer, of course, was not at
the time of the award a party to any collective-bargaining contract
with Local 46 or its International.
We deem more persuasive, however, the further fact, undisputed in
the record, that in the general New York City area, Local 46 does have
contracts with a number of cement contractors, which, under a multi-
employer agreement with the Cement League, an association of em-
ployers, recognize the appropriateness of having similar work per-
formed by lathers.
Against all the foregoing, the Employer, in defense of its asserted
right to make its present assignment to laborers, advance several
arguments. It argues that all this is really "shop work," as distin-
guished from "construction site" activities. This literal fact ]ends
little persuasion to an award in favor of the laborers. There is no
showing that the actual work of tieing and placing the metal iron
and wire in the concrete beds would be different at the very building
or construction locations from what it is at the Astoria yard. In
either case, it is only after the concrete pillars and forms are fully
completed that they are delivered to the builder and positioned in the
building or bridge being erected. Moreover, before this dispute arose,
the Employer, although complaining, paid the construction site rates.
The Employer also points to the fact that the laborers' hourly rates
are lower than those for the lathers, and contends that the Board
should decide the dispute in favor of the present assignment for this
reason alone. We do not agree with so broad a statement, but we do
believe that the element of cost may be one of many relevant factors
to be considered in the total evaluation of a record of this type in
reaching an appropriate conclusion as to the merits of the dispute.
The Employers's final, and principal contention is that Local 46
settled the dispute before the assignment which it now protests was
made; that the parties agreed in writing on November 30, 1960, upon
an amicable adjustment compromising their respective claims; that
the assignment to the laborers now is in accord with that contract;
and that Local 46, in again picketing the shop yard and obstructing
operations in May 1961, reneged on its agreement and acted in bad
faith.
As previously noted, Precrete's Astoria yard was closed down for
a full year from February 1960 to March 15, 1961. It reopened on
the latter date after a written agreement was reached with Local 46
LOCAL 46, WOOD, WIRE & METAL LATHERS INT'L UNION 1079
on November 30, 1960. This contract, which was negotiated to settle
all differences between Local 46 and the Employer, not only related
to Precrete's operation, but to other companies closely affiliated with
the Employer by joint directors and stockholders and in a certain
measure conducted as an integrated enterprise. The other companies
are Precast, Inc., Flushing, New York, herein called Precast; Pre-
fabricated Concrete, Inc., Cedarhurst, New York, herein called Pre-
fab; and Cut and Bend, Inc., a newly formed company located
immediately adjacent to Precrete's plant. Precast and Prefab also
manufacture reinforced concrete products, but only the latter does
prestressed work.
Precast, organized in 1938, used lathers represented by Local 46
for all metal work until 1957, at which time Local 46 agreed to permit
laborers represented by Local 1157 to perform the placing and tieing
of reinforce materials. Precast was picketed by Local 46 during
January and February 1960, and again during May 1961, as a result
of that union's dispute with Precrete.
Prefab began operations in June 1960. Its employees chose the
United Brotherhood of Carpenters and Joiners of America, Local
3127, in a consent representation election held on July 12, 1960 (Case
No. 2-RC-10862, not published in NLRB volumes), as their bargain-
ing agent. Prefab then executed a collective-bargaining agreement
with Local 3127 covering all of its production and maintenance em-
ployees, including employees engaged in metal work. Thereafter,
Local 46 started picketing Prefab and that company filed charges
with the Board accusing Local 46 of unfair labor practices in viola-
tion of Section 8(b) (4) (D). The picketing was stopped by an in-
junction obtained in a Federal district court by the General Counsel.
A notice of hearing was issued under Section 10(k) in that case (Case
No. 2-CD-193, not published in NLRB volumes), and, while testi-
mony was being taken before a hearing officer in September 1960, the
parties began to talk settlement, not only of that case, but of the
broader problems between Local 46 and all three of these companies,
in all of which Innis O'Rourke, president of Precrete, is the principal
party in interest.
On November 30, 1960, Local 46 and these various companies
reached agreement on their basic dispute. They reduced their settle-
ment to writing in two separate contracts, one between Local 46 and
Precrete and Precast, and the other between that union and Prefab.
Both contracts expressly state that the purpose was to resolve "dis-
pute and differences" concerning "employment of members of Local
46." The agreements also precisely provided for termination of
whatever litigation was then pending between the parties. These
included : (1) obligation upon Local 46 to attempt to prevail upon
its members to withdraw unfair labor practice charges against Pre-
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crete filed in Case No. 2-CA-7184 [132 NLRB 986], previously men-
tioned; (2) discontinuance by Prefab of a district court suit against
Local 46, apparently for damages; and (3) agreement by Prefab to
request the Regional Director for the National Labor Relations Board
for permission to withdraw its 8(b) (4) (D) charges against Local 46,
the then pending case upon which the aforementioned 10 (k) hearing
was in process. None of the parties raises any issue with respect to
the fulfillment of these conditions.
Considering the two simultaneous settlement agreements, the fol-
lowing provisions have a bearing upon the merits of the dispute now
before us :
(1) A new company, called Cut and Bend, Inc., was to do all
the cutting, bending, and prefabricating of metal bars for use by all
three manufacturing companies. For this work Cut and Bend, Inc.,
was to hire lathers, pay them in accord with the prevailing wages
established under Local 46's multiemployer current contract in the
area, and execute an agreement recognizing Local 46 as exclusive bar-
gaining agent for lathers embodying those precise conditions of em-
ployment. Cut and Bend was established in a shop yard immediately
adjacent to the property of Precrete.
(2) "If precrete or any successor goes into business again at its
Astoria site, at least one wire lather foreman in a supervisory capacity
will be employed in that yard. Such wire lather foreman shall
manually assist in and direct the placing of stirrups and other rein-
forcement."
(3) "Precast will employ a wire lather foreman when it is engaged
in manufacturing building products and construction members, such
as wall sections, column sections, beams, girders and similar products.
At all other times Precast shall not be obligated to employ a wire
lather foreman. Insofar as the employment of wire lathers by Pre-
cast is concerned, there will be no change in the present practice of the
company with respect to the extent and type of work that has been
performed by wire lathers under the last signed contract between
Precast and Local 46, except to the extent that work formerly per-
formed by wire lathers at Precast will now be performed by wire
lathers at Cut & Bend."
(4) With respect to Prefab, the contract provided : "A wire lather
foreman in a supervisory capacity only will be employed by Prefab-
ricated at its Cedarhurst, Long Island, plant, and be paid the prevail-
ing rate of pay for such work."
The Employer argues that the provision relating to Precrete was
meant to provide, and does in words say, that the union and the com-
pany compromised their disagreement over the work of tieing and
placing on wire and rods by agreeing that on each bed the company
would use one lather, who would also be foreman, to do some of that
LOCAL 46, WOOD, WIRE & METAL LATHERS INT'L UNION 1081
work, and that the remaining tieing and placing work would be per-
formed by laborers. In this way, the Employer explains, each party
gave and received a little. And representatives of the Employer, who
were present at the conferences leading to these contracts, testified to
this effect at the hearing.
Urging a different reading of this clause in the settlement agree-
ment, witnesses of Local 46 testified that there was oral agreement at
the time of signing the contracts, that what this really means was that
the company yielded entirely to the work demands of the lathers at
Precrete, that only lathers would do all the tieing and placing in that
yard, and that the clause was only intended to bind whatever lather
might be hired as foreman to do manual work also. One union
witness added that the phrase "manually assist" was attached to avoid
any charge of featherbedding. These witnesses even went as far as
to say that the Employer's representatives expressly agreed that if
the lather foremen alone could not keep up with the tieing and placing
work, additional lathers would be brought from the adjacent Cut and
Bend company to help out.
Whatever the extent to which the settlement agreement required
lather foremen to "manually assist" the laborers, it is clear on the
entire record that the work dispute now to be determined is not all
the work of tieing and placing reinforce materials, but only that por-
tion of such work which the lather foremen would not do. As we
read the contract of November 30, and in view of other related facts
shown in the record, we are satisfied the agreement was meant to pro-
vide, as its opening phrases declared, a settlement, or compromise
between the Company and Local 46, and in fact achieved that avowed
objective by dividing the tieing and placing work among four lather
foremen and whatever number of laborers the yard would require for
such work. We find the contrary testimony of Local 46's witnesses
implausible and less credible on the entire record than the recollections
of the Company's representatives.
Thus, if the purpose of the clause relating to Precrete was to award
this work exclusively to lathers at this one yard, it would be entirely
inconsistent with the pattern established by the compromises reached
for Precast and Prefab. At each yard the disputed work was in fact
divided between the conflicting claims. It may well be that, in the
course of the discussions leading to settlement, O'Rourke promised
that when, in emergencies, the complement of laborers needed help,
he would use some of the employees of Cut and Bend, Inc., to help out
instead of hiring additional laborers. We cannot, however, credit the
testimony to the effect that the Company agreed to use employees of
Cut and Bend to do all the tieing and placing in the concrete yards.
Such an agreement would leave totally unexplained the reference to
having a lather as a foreman on each concrete bed. For the foreman
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the yard was to do all the work, and lathers from Out and Bend be
called only on occasion, there would have been no need fora foreman.
More revealing in this connection is the very fact that a new com-
pany was established next door to help carry out whatever settlement
was reached. There would have been no reason for setting up the
new company if all the metal work in Precrete 's yard was to be per-
formed by lather members of Local 46, including cutting, bending,
tieing, and placing. To the extent that Cut and Bend was to do all
cutting and bending for Precast and Prefab, that work would have
been performed as well in the Precrete yard itself . If all this work
was to be performed by lather members of Local 46, there was no
reason for a separate contract with Local 46 through Cut and Bend,
Inc., instead of through Precrete as the direct employer. Indeed, if
the purpose was to bring employees from Cut and Bend into the Pre-
crete yard to do the tieing and placing, the entire separation , Precrete
from Cut and Bend, loses its meaning.
We reject such a strained , illogical, and meaningless construction
of the Precrete settlement language of the November 30 agreement.
Instead we shall give the contract a plain reading . So read, we find
the Company agreed to hire a lather as foreman on each bed, and that
all tieing and placing , in addition to what the foreman could do, was
to be performed by laborer members of Local 1175. While the fore-
man would also work with his hands , he would "assist ," or work with,
others who would fall in another category , viz, the laborers.
In keeping with the intendment of the statute to encourage ami-
cable agreement of disputes and to avoid extended litigation and eco-
nomic struggle, we deem it particularly important to place great
weight upon settlements voluntarily reached and reduced to writing.
Indeed, to encourage nonobservance of binding obligations volun-
tarily reached under collective -bargaining agreements , would invite
continued litigation of the very jurisdictional disputes which Section
8(b) (4) (D ) and Section 10(k) were intended to prevent.
As the Employer 's current assignment to the laborers in its employ
followed, and reflects adherence to, the very contract reached with
Local 46; as the laborers are duly represented by a labor organization
under a collective-bargaining agreement; as they are apparently ca-
pable of performing the work in question to the Employer 's satisfac-
tion, and, upon the entire record in the case, we find that laborers,
rather than lathers, are entitled to place and tie reinforce material to
the concrete beds. Our present determination is limited to the par-
ticular controversy, which includes the operations of Precrete and
its affiliated companies involved in this proceeding. In making this
determination, we are assigning the disputed work to laborers who
are represented by Local 1175 , but not to Local 1175 or its members.
In view of the above , we find that Local 46 was not and is not en-
LUMBER & MILLWORK INDUSTRY LABOR COMMITTEE 1083
titled by means proscribed by Section 8(b) (4) (D) to force or require
the Employer to assign the disputed work to its members rather than
to laborers represented by Local 1175.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and upon the entire record
in the case, the Board makes the following Determination of Dispute
pursuant to Section 10(k) of the Act:
1. Employees engaged as laborers, currently represented by Local
1175, International Hod Carriers, Building and Common Laborers
Union of America, AFL-CIO, are entitled to place and tie reinforce
material at the Employer's Astoria, Long Island, New York, plant.
Accordingly, Local 46, Wood, Wire and Metal Lathers International
Union, AFL-CIO, and Brian Dillon, its business representative, are
not entitled to force or require the Employer to assign the above-
mentioned disputed work to lathers, who are currently represented by
Local 46.
2. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 46, Wood, Wire and Metal Lathers Inter-
national Union, AFL-CIO, and Brian Dillon, its business representa-
tive, shall notify the Regional Director for the Second Region, in
writing, whether or not it will refrain from forcing or requiring the
Employer by means proscribed by Section 8(b) (4) (D) to assign the
work in dispute to lathers rather than laborers.
The Lumber and Millwork Industry Labor Committee of Cleve-
land, Ohio , et al.1 and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
436,2 Petitioner . Cases Nos. 8-RC-4083, 8-RC-4086, and 8-RC-
4102 through 8-RC-4117. April 13, 1962
DECISION AND CLARIFICATION OF CERTIFICATION
Upon a motion for clarification of certification filed by the Em-
ployer on September 5, 1961, the Board ordered a hearing, which was
held before Arthur R. Mattson, Jr., hearing officer, for the purpose
of taking further testimony. The hearing officer's rulings are free
from prejudicial error and are hereby affirmed.'
1 The parties stipulated that the Independent Lumber Company ( 8-RC-4107 ) has been
liquidated and is no longer involved in these proceedings.
2 The name of the Petitioner appears as amended at the hearing.
8 The United Brotherhood of Carpenters and Joiners of America , Carpenters District
Council of Cuyahoga Lake, Geauga and Ashtabula Counties, AFL -CIO, and its member
Locals 509 and 1365 were permitted to participate in the hearing as joint Intervenors on
the basis of their participation in the previous Board hearing.
136 NLRB No. 101.