Bricklayers, Local 7

National Labor Relations Board - Board Decisions

Oct 31, 1972

199 N.L.R.B. 1256 (N.L.R.B. 1972)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO Bricklayers, Stone Masons, Blocklayers,
Pointers, Caulkers and Cleaners, and Casters, Un-
ion Local No. 7 of San Francisco , California and
Fentron Industries, Inc. and International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, Riggers, and Machinery Movers, Local
No. 377, AFL-CIO. Case 20-CD-357
October 31, 1972
DECISION AND ORDER QUASHING NOTICE
OF HEARING
I BUSINESS OF THE EMPLOYER
Fentron is a Washington corporation engaged in
the manufacture and installation of architectural alu-
minum products, including aluminum sash, compo-
nent trims, and jams. During the past 12 months
Fentron has performed construction work in Wash-
ington, California, and Hawaii valued in excess of
$50,000 in each of those States and has had goods
valued in excess of $50,000 shipped to Hawaii from
Seattle, Washington. The parties stipulated and we
find that Fentron is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
charges filed by Fentron , Industries, Inc., on Feb-
ruary 10, 1972. The charges allege in substance that
AFL-CIO Bricklayers, Stone Masons , Blocklayers,
Pointers , Caulkers and Cleaners , and Casters, Union
Local No. 7 of San Francisco , California , hereinafter
called Bricklayers , engaged in a work stoppage and
threatened and coerced employees of Fentron Indus-
tries, Inc., hereinafter called Fentron, with an object
of forcing or requiring Fentron to assign particular
work to employees who are members of Bricklayers
rather than to employees who are members of Inter-
national Association of Bridge , Structural and Orna-
mental Iron Workers , Riggers, and Machinery
Movers, Local No. 377, AFL-CIO, hereinafter called
Iron Workers.
Pursuant to notice , a hearing was held before
Hearing Officer John J. Wade on April 10 through 13
and April 19 and 20, 1972. All parties appeared at the
hearing and were afforded the full opportunity 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 powers
in connection with this case to a three-member panel.
The rulings made at the hearing are free from
prejudicial error and are hereby affirmed . The Brick-
layers and Fentron filed briefs in support of their
positions and they have been duly considered.'
Upon the entire record in this case the Board
makes the following findings:
1 Prior to the close of hearing , Bricklayers filed a motion to quash with the
Regional Director . The motion to quash was referred by the Regional Direc-
tor to the Board Fentron and the Iron Workers both filed statements in
opposition thereto . These documents have also been considered by the Board
in reaching its decision.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties further stipulated and we find that
Bricklayers and Iron Workers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Dinwiddie Construction Company, hereinafter
called Dinwiddie, is a general contractor engaged in
San Francisco, California, in the construction of a
building called the Trans-American Insurance Com-
pany Building. Dinwiddie subcontracted the work of
installing the windows in the Trans-American build-
ing to Fentron. Fentron used its own employees to
install the aluminum sash in the building but arranged
to have the installation of the glass in the sash done
by another firm.
At the time Fentron obtained the subcontract for
the window installation work, all of its employees
were ironworkers who were covered by a collective-
bargaining agreement between Fentron and the Iron
Workers. Fentron therefore commenced performance
of its subcontract with a crew of ironworkers. On
October 4, 1971, Canavan, business representative of
the Bricklayers, talked to Purcell, Fentron's job super-
intendent. Canavan claimed the caulking work was
bricklayer work and threatened to close down the job
unless bricklayers were hired. On October 7, 1971, a
conference on the matter was held at the jobsite. Pre-
sent at this conference were: a Bricklayers Interna-
tional vice president, an Iron Workers International
vice president, local representatives from both Un-
ions, and Fentron's job superintendent. An agreement
was reached that Fentron would hire one bricklayer
to do the caulking work. Thereafter Fentron signed a
contract with the Bricklayers covering the bricklayer
it employed. The work proceeded without incident
199 NLRB No. 182
BRICKLAYERS , LOCAL 7
until January 14, 1972, when Canavan returned to the
jobsite. He observed that some caulking work was
being done by ironworkers and protested their doing
it. After some discussion of the matter, Fentron's
bricklayer walked off his job in protest. Fentron
thereupon assigned all caulking work to ironworkers
and proceeded with the job. Fentron then reported
these events to the National Joint Board for the Settle-'
ment of Jurisdictional Disputes, hereinafter referred
to as the Joint Board.
On January 18, 1972, the Joint Board sent a tele-
gram to the Bricklayers International president di-
recting him to take action to compel its local to cease
the work stoppage immediately and to continue work-
ing in accordance with the Employer' s assignment
pending further Joint Board action. The bricklayer
reported to the job on January 25, 1972, but was then
informed that his services were no longer needed. No
bricklayers were employed by Fentron thereafter.
The Bricklayers picketed the construction site
from February 9 through February 12, 1972. At that
time only bricklayers employed by others on the job-
site left the job. On February 10, 1972, Fentron filed
the charge underlying this proceeding. Bricklayers
picketed again from February 28 through March 2,
1972. On this occasion, the picketing shut down the
entire job.
On March 2, 1972, a jobsite conference was
called by another contractor. Present at that confer-
ence were : a representative of the contractor calling
the conference, a representative of Dinwiddie, Purcell
for Fentron, Canavan for Bricklayers, and a business
representative of Iron Workers. An agreement, sub-
ject to the approval of Fentron's home office, was
reached that Fentron suspend caulking work until the
dispute was settled? Thereafter, the Bricklayers re-
moved the pickets, and the construction site work
proceeded. Later that day, Fentron provided written
confirmation in telegraphic form of the agreement
earlier reached. Dinwiddie then sent a telegram to the
Joint Board expressing an agreement by the named
senders of the wire to be bound by the Joint Board's
determination of the dispute. Dinwiddie included
Purcell's name as agent for Fentron as one of the
senders of this telegram . Purcell denies authorizing
Dinwiddie's inclusion of his name on the wire but
admits knowledge of the inclusion and receipt of a
copy of the wire . On that same day, March 2, 1972,
the Joint Board sent a wire to the Bricklayers directing
that it pull the pickets and have their bricklayers go
back to work?
2 The Iron Workers business representative advised all parties that if its
members lost work as a result of any settlement of this dispute it would picket
and close down the job.
3 The exact time sequence in which the various telegrams here described
were sent and received by the addressees is not clearly revealed by the record.
1257
Thereafter, on March 10, 1972, General Counsel
secured a temporary restraining order against the
Bricklayers. On the same day, the chairman of the
Joint Board advised all parties that he would not hear
the dispute as it was his understanding that none of
the disputed work was being performed. On March
13, 1972, the Bricklayers wired Fentron that he should
proceed with the caulking work in any manner he
desired and also so advised the Joint Board. On
March 14, 1972, the Joint Board advised all parties
that it would hear the dispute on March 23, 1972, and
it asked all parties to submit any evidence they desired
to it by March 22, 1972.
The Joint Board met on March 23, 1972, at which
time it issued a statement and directive which said, in
relevant part:
It has been agreed by the two international
unions involved that:
(1) when the window is set in caulking, in-
cluding the finished caulking around the perime-
ter of the sash in the interior and exterior of the
building, if one continuous operation, the work
will be assigned to iron workers.
(2) All finished caulking on the interior and
the exterior perimeter of the building when going
against the precast concrete panels shall be as-
signed to bricklayers if it is a secondary or follow-
up operation.
Contractor is directed to proceed with the
work on this basis.
Fentron took no steps to perform any caulking
work at all until some time after the hearing in this
proceeding was concluded. During the course of this
hearing, however, it wrote a letter to the Joint Board
stating that it did not consider itself bound by that
body's determination of the dispute. Its recent assign-
ment of the caulking work had been made to
ironworkers.
B. The Work in Dispute
The work in dispute involves the task of caulking
the perimeters of aluminum window sashes at
Fentron's Trans-American Building jobsite located in
San Francisco, California.
C. Contentions of the Parties
Fentron and the Iron Workers claim that the
Board should award the disputed tasks in accord with
Fentron's original assignment to ironworkers repre-
sented by the Iron Workers. Bricklayers contends that
the notice of hearing should be quashed because: (1)
all parties herein are contractually bound to resolve
the matters in dispute through other methods of ad-
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justment; and (2) the use of the agreed-upon methods
of adjustment has resulted in a determination of the
dispute as made by the Joint Board. In the event its
motion to quash is denied, Bricklayers contends the
disputed work should be awarded to it.
D. Ruling on the Motion to Quash
We find that a method of voluntary adjustment
has been agreed upon by all the parties. Fentron's
agreement to this effect is evidenced by various in-
struments. By its contract with the Iron Workers, and
also by its contract with Dinwiddie, Fentron has
agreed that, in the event of an interunion jurisdiction-
al dispute, it will be bound either by a Joint Board
determination of the dispute or by a determination of
the dispute reached by agreement of the International
Unions involved by whatever procedures the latter
may adopt 4 Furthermore, Fentron's name appears as
consignatory on a telegram Board's determination of
the instant dispute.
With knowledge of the telegram and a copy
thereof, Fentron made no effort to countermand the
clear submission contained therein. We, therefore,
find no merit in its contention, here raised for the first
time, that its signature to that telegram was unauthor-
ized.
Relying on Ralph M. Parsons, Co.,5 Fentron urges
that in any event, because the work stoppage which
was commenced on February 28, 1972, when the
Bricklayers set up picket lines was continued for more
than 48 hours, it was released from any agreement to
abide by the Joint Board's determination. The Par-
sons case is based on the procedures of the Joint
Board which provide that contractors are free to "pur-
sue other methods of settlement" if work stoppages
4 Dinwiddie and Fentron each have a contract with Iron Workers dated
August 16 , 1970, and effective until June 20, 1974 Each contract contains
identical terms which provide for the resolution of jurisdictional disputes
between different unions in the two ways noted, either by the Joint Board
routes, or by the International Unions route Fentron's contract with Iron
Workers was negotiated by an employer association representing it as part
of a group of ironworkers employers operating in the State of California and
a portion of the State of Nevada. Although Fentron' s signature does not
appear on this document , there is in evidence an "interim agreement" with
Iron Workers dated March 4, 1970, which Fentron signed . This "interim
agreement" refers, in pertinent part, to the fact that the multiemployer nego-
tiations which ultimately produced the August 16, 1970, contract , supra, were
then going on and expresses Fentron's agreement to be bound by the contract
ultimately reached in the negotiations.
Fentron 's contract with Dinwiddie for the Trans-Amencan window
installation work expressly provides , as well , that Fentron "will comply" with
the terms of all of Dmwiddie 's "labor agreements" which may be applicable
to the work.
S 188 NLRB No. 145.
persist for more than 48 hours after Joint Board notifi-
cation to the parties.6
As indicated, supra, the Joint Board's notifica-
tion to the parties with respect to the February 28,
1972, work stoppage was dated March 2, 1972. The
Bricklayers withdrew the picket line that same day
and thereby removed that obstacle to the resumption
of work. Although Fentron did not then resume its
performance of the disputed work, its decision not to
do so does not operate to bring that "stoppage" of the
disputed work within the purview of the Parsons case.
In any event, Fentron's agreement to be bound by the
determinations of jurisdictional disputes between dis-
puting unions at the International level would not be
subject to attack on the ground that a work stoppage
persisted for more than 48 hours after notification by
the Joint Board.
Having found that an agreed-upon method for
the voluntary adjustment of the dispute exists, the
matter is beyond our jurisdiction. Fentron's and the
Iron Workers contention that our jurisdiction is re-
stored when, as appears to be the case here, the parties
disagree about the meaning of the Joint Board deter-
mination is without merit. To hold otherwise would
tend to discourage and render worthless the making
of such awards pursuant to voluntary agreement. In
effect, such a holding would permit a party to contest
an adverse determination simply by raising an issue of
interpretation and thereby gain recourse to the Board
for another determination which might be favorable
to it. In our opinion, this would stimulate abuse of the
Board's processes,' while circumventing the preferred
status awarded private methods of adjustment in Sec-
tion 10(k) of the Act.
As we have found that, as of the time the charge
herein was filed, all parties herein had agreed-upon
methods for the voluntary adjustment of the dispute,
we further find that we are without authority to de-
termine this dispute and shall accordingly quash the
notice of hearing issued in this proceeding.
ORDER
It is hereby ordered that the notice of hearing
issued in this proceeding be, and it hereby is, quashed.
6 Art. VI, sec 2, of the Plan for Settling Jurisdictional Disputes provides
in pertinent part "Should work stoppages persist for more than forty-eight
(48) hours following notification by the National , Jomt Board (Saturdays,
Sundays, and legal holidays excluded), the parties hereto agree that the
contractor shall be free to pursue methods of settlement other than the Joint
Board established hereunder."
r International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America Local 627 (Geo. E. Hoffman & Sons, Inc), 195 NLRB No.
13.