Millwrights Union Local 102, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Frederick Meiswinkel, Inc. d/b/a Meiswinkel Interiors)

National Labor Relations Board - Board Decisions

Mar 16, 1982

260 N.L.R.B. 972 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Millwrights Union Local 102, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO
and Frederick Meiswinkel, Inc. d/b/a Meiswin-
kel Interiors and Carpenters Union Local 2006,
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO; Carpenters Union Local
316, United Brotherhood of Carpenters & Join-
ers of America, AFL-CIO. Case 32-CD-50
March 16, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Frederick Meiswinkel, Inc.
d/b/a Meiswinkel Interiors, herein called the Em-
ployer, alleging that Millwrights Union Local 102,
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, herein called the Millwrights,
had violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign cer-
tain work to its members rather than to employees
represented by Carpenters Union Local 2006,
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, herein called Local 2006,
and/or Carpenters Union Local 316, United Broth-
erhood of Carpenters & Joiners of America, AFL-
CIO, herein called Local 316.
Pursuant to notice, a hearing was held before
Hearing Officer John D. Meakin on April 23, 1981.
All parties appeared' and were afforded full oppor-
tunity 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
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPI OYER
The parties stipulated, and we find, that Freder-
ick Meiswinkel, Inc. d/b/a Meiswinkel Interiors, is
a California corporation with corporate offices in
'However. for reasons discussed injta. Attorney Michael H Roger.
counsel for all three of the Unions. left the hearing roonm hortll after the
hearing opened.
260 NLRB No. 120
San Francisco, California. The offices of Meiswin-
kel Interiors are located in Santa Clara, California.
The Employer is principally engaged in the prepa-
ration for, and installation of, computer floors,
drywall, and demountable walls on commercial or
industrial jobsites. During the past year, the Em-
ployer purchased goods valued in excess of $50,000
from suppliers located in the State of California,
which goods were received by those suppliers di-
rectly from points located outside the State of Cali-
fornia. The parties also 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 ju-
risdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
316, Local 2006, and the Millwrights are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background
The Employer was awarded a subcontract by
Valhalla Builders and Contractors to perform the
installation of the computer floor at the IBM job-
site located at Building 5, 560 Cottle Road, San
Jose, California. The Employer assigned the work
jointly to employees represented by Locals 316 and
2006. The Employer has utilized approximately 10
employees on this project.
The project involves installation of approximate-
ly 11,600 square feet of false or raised floor. Com-
puter equipment, software, and other electronic
equipment will be mounted on this computer floor
and all the attendant electrical or trunk cables are
to be installed beneath. (Installation of the equip-
ment and cabling is performed by another compa-
ny.) Computer floors are built on top of the struc-
tural floor of the building. The structural floor is
usually reinforced concrete. The Employer is re-
sponsible for installing pedestals, laying a steel
framework on top of the pedestals, and attaching
floor panels to the steel framework. Computer
floors are raised 6 to 30 inches higher than the
structural floor and are required to be level to very
precise tolerances (one-sixteenth of an inch devi-
ation in 10 feet). The Employer testified that this
precise tolerance requires a great deal of site prepa-
ration and specific employee skills in leveling the
surface. The pedestals, framework, and floor panels
are manufactured by a separate company off the
jobsite (out of state) and shipped to the jobsite to
be uncrated, assembled, and installed once the site
972
CARPEN'IERS. MILIWRI(;iHT'S LINION l.OCAL 102
preparation is completed by employees of the Em-
ployer.
On March 18, 1981, Carl Erickson, a business
agent for the Millwrights, approached the Employ-
er's superintendent, Bruce Johnson, at the jobsite
and claimed the computer floor installation as mill-
wrights' work. When Erickson returned later that
month and found that the Employer had hired no
millwrights, he threatened to file grievances against
the Company and to bring internal union charges
against Superintendent Johnson, a member of
Local 316.
On March 31, 1981, the Millwrights filed a
grievance against Valhalla, the primary contractor
at the IBM jobsite. The next day Valhalla's secre-
tary-treasurer, Robert Casella, was contacted by a
Local 316 business agent, Elmer Phillips, who
claimed that millwrights should be given the work,
and threatened both to file a grievance against Val-
halla over the Employer's failure to use millwrights
and to close down all the jobs at the IBM site.
During this conversation, Phillips told Casella to
call "his boss," (i.e., Phillips' boss) referring to the
Millwrights business agent, Jim Green, and explain
the Employer's position to Green. That same day
Casella called Green to inform him that he re-
ceived a threat from Phillips and to ask for the
Millwrights position. Green claimed that the work
in dispute should be given to millwrights.
On or about April 2, 1981, Superintendent John-
son called Tony Pagan, business agent for Local
2006, about the dispute. Pagan stated that computer
floor work was always assigned to carpenters.
Johnson then called Phillips. Phillips said mill-
wrights should do the work. Phillips repeated his
threat to shut the job down if the work was not
given to employees represented by the Millwrights.
On April 10, 1981, the Millwrights sent a tele-
gram to the Employer stating that grievances had
been filed against the Employer and would be
processed over assignment of the computer floor
work at the IBM jobsite.
The computer floor at the jobsite is approximate-
ly 95 percent complete. As of the date of the
hearing the entire project had been halted by the
owner for reasons apparently unrelated to this dis-
pute. Until the job was halted, installation for the
computer floor continued to be performed by em-
ployees represented by either Local 316 or Local
2006. No employees represented by the Millwrights
have been employed by the Employer on this job-
site or elsewhere.
On April 3, 1981, the Employer filed the instant
charge, alleging that the Millwrights had violated
Section 8(b)(4)(D) of the Act by the aforemen-
tioned threats and by the filing of the aforemen-
tioned grievances in order to force the Employer
to assign the work in dispute to employees repre-
sented by the Millwrights.
B. The Work in Dispute
The work in dispute consists of the installation of
the computer floor in Building 5 at the IBM jobsite
at 560 Cottle Road, San Jose, California.
C. Contentions of the Parties
Shortly after the hearing opened, Attorney Mi-
chael B. Roger, counsel for all three of the Unions
involved, left the hearing room stating that because
of a possible conflict of interest he would not be
participating further in the hearing. Thereafter, the
evidence in this case was developed through em-
ployer witnesses and documents. However, in his
opening statement made prior to his departure,
Roger had stated that "it is the belief of each of the
[three] labor organizations that there are existing
procedures within their own International Union,
and within the collective-bargaining agreement, or
agreements to which this Employer may be bound,
which require a resolution of any such claim to the
dispute through proceedings that do not involve
the activities of the National Labor Relations
Board."
Subsequently, on or about April 28, 1981, Roger,
acting on behalf of Local 316, Local 2006, and the
Millwrights, sent a telegram to the Regional Office
of the Board,2 in which he, inter alia, stated that all
three Unions disclaimed the work in dispute, and
contended that, as the disclaimer resolved the issue,
the notice of hearing should be quashed and the
case dismissed.
The Employer contends that there is reasonable
cause to believe that the Millwrights violated
Section 8(b)(4)(D) of the Act by seeking to
compel, through threats to picket and the filing of
grievances, the assignment of the disputed work to
employees represented by it. The Employer con-
tends that there is no agreed-upon method for the
voluntary resolution of this dispute which is bind-
ing upon all parties to this proceeding. On the
merits, the Employer contends that the disputed
work should be awarded to employees represented
by Local 316 and/or Local 2006 on the basis of the
Employer's original assignment and preference,
area practice, and consideration of efficiency, econ-
omy, and skills.
2 The telegram was receied by the Region on April 30, 1981, a week
after the hearing had opened and closed
973
I)DFCISIO)NS ()1 NAII()NAI. LABO()R REIA'IONS HOARI)
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 (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) that the parties have not agreed
upon a method for the voluntary adjustment of the
dispute.
With respect to (1) above, it is not disputed that
a representative of the Millwrights approached a
supervisor of the Employer and claimed the work
in dispute for employees represented by the Mill-
wrights. After later finding out that the Employer
had not hired any such employees, the same repre-
sentative threatened to file grievances against the
Employer and to bring internal union charges
against the Employer's superintendent, Bruce John-
son, a member of Local 316. Subsequently, it ap-
parently filed a grievance against the Employer
over the assignment of the disputed work. Since it
is clear that these threats, as well as the grievance,
were made in furtherance of the Millwrights claim
to the disputed work, we conclude there is reason-
able cause to believe that the Act has been violated
as charged. See United Food and Commercial Work-
ers International Union, District Union 227, AFL-
CIO (The Kroger Co.), 247 NLRB 195, 196 (1980).
This conclusion is also supported by evidence
which shows that the Millwrights filed a grievance
against Valhalla, a neutral employer, in an attempt
to pressure the Employer to assign the work in dis-
pute to that Union. Because the Millwrights filed
the grievance against Valhalla solely to satisfy a ju-
risdictional claim, such grievance was without
merit, and its filing was coercive within the mean-
ing of Section 8(b)(4)(ii) of the Act. See Brother-
hood of Teamsters & Auto Truck Drivers Local No.
85, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Pacific
Maritime Association), 224 NLRB 801, 805-808
(1976). Finally, we note that Elmer Phillips, busi-
ness agent of Local 316, threatened to file griev-
ances against Valhalla over the Employer's failure
to use employees represented by the Millwrights
and threatened to close down all the jobs at the site
if the work was not assigned to those employees.
Although a Local 316 business agent, in the con-
text in which the claims and the threats were
made, we find that there is reasonable cause to be-
lieve that Phillips was acting on behalf of the Mill-
wrights in making these threats. Thus, Phillips
claimed work for the Millwrights which had origi-
nally been assigned to employees represented by
his own Local, thereby advocating a position con-
trary to the interest of his own Union, and told the
Employer's agent to check the Millwrights claim
to the work with "his boss," referring to the Mill-
wrights business agent. When contacted, the Mill-
wrights business agent made no effort to disavow
Phillips' remarks, or to disassociate himself from
Phillips' comments.
Accordingly, we find there is reasonable cause to
believe that the Millwrights engaged in all of the
foregoing conduct with an object of forcing and
requiring the Employer to assign the disputed
work to employees it represented, and that, there-
fore, Section 8(b)(4)(ii)(D) of the Act has been vio-
lated.
With respect to (2) above, we find that there is
no agreed-upon method for the voluntary settle-
ment of the dispute. The jurisdictional dispute pro-
vision of the Drywall/Lathing Master Agreement
to which all parties in the dispute are bound does
not give an employer any role in jurisdictional dis-
pute resolutions and does not obligate signatory
carpenter unions to resolve such disputes in a spec-
ified manner. However, included in the
Drywall/Lathing Master Agreement is a general
provision, section 7, article I, which provides in
pertinent part that if a contractor does "related car-
pentry work as specified in local area carpenter
master agreements, he shall do so under the terms
and conditions of the then current appropriate
master agreements in said areas." There are two
area master Carpenters agreements which arguably
might be included within the terms of this provi-
sion: the Northern California Home Builders Con-
ference Agreement, herein called the Home Build-
ers Agreement, and the Associated General Con-
tractors of Northern California, Inc., Bay County
General Association, Inc., Agreement, herein
called the Bay Counties Agreement. Both of these
agreements provide for agreed-upon methods for
determining jurisdictional disputes. However, the
Employer specifically contends that it is not bound
to either the Home Builders Agreement or the Bay
Counties Agreement by the aforementioned section
of the Drywall/Lathing Master Agreement, and no
evidence was submitted to refute that contention.
Although attorney Roger did contend that there
existed procedures for the voluntary settlement of
this jurisdictional dispute, he did not identify the
procedures or present evidence supporting that
contention. In any event, we conclude that section
7, article I, of the Drywall/Lathing Master Agree-
ment is too vague and ambiguous concerning the
scope of its application to the Home Builders and
Bay Counties Agreements to enable us to deter-
mine whether its terms were intended to incorpo-
rate the agreed-upon methods for resolving juris-
dictional disputes set forth in those two agree-
ments.
Q74
CARPENTERS, MIIl 1 WRIGHT'S UNION LOCAL 10)2
Accordingly, we find there is no agreed-upon
contractual method for the resolution for the in-
stant jurisdictional dispute. Nor have the parties
voluntarily agreed upon any other procedure to re-
solve this dispute.
As to the Millwrights contention that this pro-
ceeding should be dismissed because all three
Unions have disclaimed the disputed work, we find
that the disclaimer was filed as a ruse for the
Unions to avoid the Board's determination of the
instant dispute, and that it is therefore not entitled
to be given any effect.
The Board will not honor a hollow disclaimer;
that is, one submitted for the purpose of avoiding
an authoritative decision on the merits. See, e.g.,
Laborers' International Union of North America. La-
borers' District Council of Western Pennsylvania and
Local 910, AFL-CIO (Brockway Glass Company.
Inc.), 226 NLRB 142 (1976). Here, the Unions did
not disclaim the work until after the hearing had
closed and at a time when no work of any kind
was being performed at the site, as the project's
owner had stopped all work there for reasons unre-
lated to the instant dispute. This cessation of work
had occurred before the hearing commenced, and
there is no evidence that any work on the project,
including that in dispute, had been resumed as of
the filing of the disclaimer. In these circumstances,
we conclude that the disclaimer constituted an
empty gesture. Not only had the hearing been held
without any indication before its completion that
the Unions were no longer seeking the work,3 but
none of the Unions was giving up much of any-
thing by disclaiming the disputed work because, in
reality, there was no work to disclaim. Further,
since the disclaimer came after all work had been
halted, it could not have had an impact on the em-
ployees who had been performing the work. Thus,
we are unable to determine whether, had work not
been stopped, employees who were represented by
Locals 316 and 2006, respectively, would have
complied with the disclaimer or instead would
have ignored it and continued to do the work. A
disclaimer in these circumstances is virtually mean-
ingless because its effectiveness cannot be tested. 4
3 In this regard. we note that the disclaimer Aas not filed until a week
after the close of the hearing and that at the hearing there had been no
hint that a disclaimer would be forthsominng or that one even w.sas being
contemplated. The asserted defense was that some unspecified vlhluntar,
method existed to resolve the dispute.
In this regard, the Employer asserts in its brief that employees repre-
sented by Locals 310 and 2006 have continued to perform the identical
work at other of the Employer's jobs in the area The Unions have not
contested the truth of this assertion and, coslsequentl,, wse have accepted
the assertion as fact Thus, while the disclaimer is limited to the s ork at
the site in question, the ongoing performance of similar work elsess herc
for the Employer suggests Ihat the emploee, sho had been pcrforming
the disputed Aork might %sell have conrlnued to perform it regardless of
the disclaimer It is well settled that the continued performance of work
Finally, we view the disclaimer as a sham be-
cause the Unions throughout this proceeding have
been represented by the same counsel, who has
spoken for all of them as one voice. At the least,
such common representation implies a conflict of
interest, s particularly where, as here, the interests
of Locals 316 and 2006 and the employees they
represent are at odds with the interests of the Mill-
wrights and the employees it represents concerning
the disputed work. Consequently, there is no
reason to believe that, absent their common repre-
sentation in this matter, any one of the Unions
would have disclaimed the work of its own voli-
tion without regard to the actions of the other two.
In other words, the Unions' common representa-
tion indicates that their decision to disclaim the
work was not reached at arms' length. As a result.
the disclaimer is not worthy of belief.
Accordingly, since there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred, we find that this dispute is properly
before the Board for determination.
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 various factors.6 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case. 7
1. Collective-bargaining agreement
All the parties in this proceeding are bound to
the Drywall/Lathing Master Agreement. This
agreement is primarily concerned with work in-
volving walls and ceilings. It does not specifically
cover the installation of computer floors. Accord-
ingly, we find that this factor does not favor any
group of the employees involved.
2. Past practice of the Employer
In the past the Employer has always awarded
work similar to that in dispute to carpenters who
are represented by Locals 316 and 2006. Bruce
in dispute bh emplo):ees assigned Io it nullifies the effect of a disclaimer
filed hb the alion representing them See. e g , International U'non of E/e
saito Conrlrucbors. 4bL-CO, 1La Il Unimon No. I (Elevator Indusitrie .Avvo-
clalion and .Siilar El'vaiar Indurises, Inc.), 229 NILRB 12(1, 12(12 (1477),
and I'nited Steelsorkerv oif Ametrica. .4L CIO and trs ILocal \o 4454
(Continental Can Compunv, Inc ). 202 NLRH 652. h54 (1973)
Cl ounsel himself acknow ledged that his common represerntatlon of the
Unions gas e a t least the inlpressionl of such a conflilS
" .1. R 11 Radio & lehviiion Broadcast Engineers n'nrson. lo al 1212.
lnternatiosatl Brotherhuood of Electrical
4
orkers. .4 L-CIO [('luambtia
BrolsadcatInmg Sv wet]s 164 U S 573 1961 )
Inte rnationa.il Iaii' iatln ... .i4c n /iiioit { l .odge o 1 74_, -I _ ('I( (J
-4 Jon s ( onwsruct o (S onpanLi. 15 Ni RB 141)2 1962)
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson testified that, during the year he has been
superintendent for the Employer, the Employer
performed between 43 to 50 installations of de-
mountable walls and computer floors, and has
always assigned the work to carpenters rather than
to millwrights.
We conclude that this factor favors an assign-
ment to employees represented by Locals 316 and
2006.
3. Employer's assignment and preference
The Employer has assigned the disputed work,
and prefers an assignment, to employees represent-
ed by Locals 316 and 2006. These factors favor an
assignment to the employees represented by Locals
316 and 2006.
4. Relative skills
Johnson testified that computer installation re-
quires a high level of skill in order to construct a
floor with less than one-sixteenth of an inch of
height variation within a 10-foot square, so as to
keep a completely perfect balance. These skills are
possessed by employees represented by Locals 316
and 2006. In contrast, Johnson testified that em-
ployees represented by the Millwrights do not have
the skills to perform the work in dispute in an effi-
cient and economical manner. We find that this
factor favors an award of the work in dispute to
employees represented by Locals 316 and 2006.
5. Economy and efficiency of operations
Superintendent Johnson testified that the Em-
ployer does both demountable walls and computer
floors; and that carpenters represented by Locals
316 and 2006 can be, and are, used by the Employ-
er to do both kinds of work while he had never
heard of millwrights doing demountable work.
Thus, because of their versatility, it is more eco-
nomical and efficient for the Employer to use car-
penters represented by Locals 316 and 2006.
We conclude that this factor favors an award of
the work to employees represented by Locals 316
and 2006.
6. Area and industry practice
Of six competitors of the Employer in the north-
ern California area, five use exclusively carpenters
for computer floor work and the sixth uses carpen-
ters primarily with a few millwrights. In southern
California five companies which do computer
floors use carpenters primarily. There was testimo-
ny that in the Eastern and Southwestern United
States carpenters rather than millwrights are used
to install computer floors. No evidence was pre-
sented as to other areas.
We therefore find that the factors of area and in-
dustry practice favor the award of the disputed
work to employees represented by Locals 316 and
2006.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by
Locals 316 and 2006 are entitled to perform the
work in dispute. We reach this conclusion relying
on the Employer's past practice, assignment and
preference, the relative skills possessed by these
employees, economy and efficiency of operations,
and area and industry practice, all of which favor
an award of the disputed work to the employees
represented by Locals 316 and 2006. In making this
determination, we are awarding the work in ques-
tion to employees who are represented by Locals
316 and 2006, but not to those Unions or its mem-
bers. The present determination is limited to the
particular controversy which gave rise to this pro-
ceeding.
Scope of Determination
The Employer contends that the award by the
Board should be broad due to the fact that there is
reason to believe that the Millwrights will continue
to claim such work in the future at other jobsites of
the Employer. The Millwrights has stated no posi-
tion on this issue.
The record does not support a finding, required
for the granting of a broad order, that the dispute
is likely to recur in a broader geographic area than
the site here involved. Our present determination is
therefore limited to the specific site where the in-
stant dispute arose.
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. Employees of Frederick Meiswinkel, Inc.
d/b/a Meiswinkel Interiors, who are represented
by Carpenters Union Local 316, United Brother-
hood of Carpenters & Joiners of America, AFL-
CIO, and Carpenters Union Local 2006, United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO, are entitled to perform the installation
of computer floors in Building 5 at the IBM jobsite
at 560 Cottle Road, San Jose, California.
2. Millwrights Union Local 102, United Brother-
hood of Carpenters & Joiners of America, AFL-
CIO, is not entitled by means proscribed by
976
CARPENTERS. MILLWRIGHT'S UNION LOCAL 102
Section 8(b)(4)(D) of the Act to force or require
Frederick Meiswinkel, Inc. d/b/a Meiswinkel Inte-
riors, to assign the disputed work to employees
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Millwrights Union
Local 102, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, shall notify the Re-
gional Director for Region 32, 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 disputed work
in a manner inconsistent with the above determina-
tion.
MEMBER FANNING, dissenting:
I would honor the disclaimer by Millwrights
Local 102 and quash the notice of hearing for the
reasons set forth in my dissenting opinion in Labor-
ers' International Union of North America, Laborers'
District Council of Western Pennsylvania and Local
910, AFL-CIO (Brockway Glass Company, Inc.),
226 NLRB 142 at 145 (1976). In my view, the va-
lidity of the disclaimer is unaffected by the
common legal representation of the three labor or-
ganizations involved. Further, I find no relevance
at all in the fact that two of the labor organizations
which are not respondents performed similar work
for the Employer elsewhere which is not in dis-
pute. Even assuming, for the sake of argument, the
relevance of that fact to the validity of their dis-
claimer of the work which is in dispute, it casts no
shadow at all upon the disclaimer by Respondent.
Without a competing claim from Respondent, there
is no jurisdictional dispute.
Accordingly, I would quash the notice of
hearing.
977