Bricklayers & Masons Int'l Union, Local 3, Etc.

National Labor Relations Board - Board Decisions

Oct 29, 1963

144 N.L.R.B. 1279 (N.L.R.B. 1963)

BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1279
not represent a majority of Respondent's employees when it requested recognition
and that Respondent, when it then refused to recognize the Union, did not violate
Section 8(a)(5) of the Act. Cf. Gorbea, Perez & Morell, S. en C., 133 NLRB
362, 369-374.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCL
The activities of the Respondent set forth in section III, above , occur i ing in
connection with the operations of the Respondent described in section 1, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent violated Section 8(a)(1) of the Act, it
will be recommended that Respondent cease and desist therefrom and lake certain
affirmative action designed to effectuate the policies of the Act.
In view of the foregoing findings of fact , and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Boot and Shoe Workers' Union , AFL-CIO, is, and at all times material herein
has been , a labor organization within the meaning of Section 2(5) of the Act.
2. Cumberland Shoe Corporation is engaged in and at all times material herein
has engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
rights garanteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair practices prescribed by Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
5. By refusing to bargain with the Union on and after January 23, 1963, Re-
spondent has not engaged in and is not engaging in unfair labor practices proscribed
by Section 8 (a) (5) of the Act.
(Recommended order omitted from publication.]
Bricklayers and Masons International Union, Local No. 3, and
C. M. Fish, Its Agent and Engineered Building Specialties,
Inc.
United Brotherhood of Carpenters and Joiners of America, Local
No. 98, and Tom Severn , Its Agent and Engineered Building
Specialties, Inc. Cases Nos. 19-CD-79 and 19-CD-79-2. Octo-
ber 29, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the Act, follow-
ing charges filed by Engineered Building Specialties, Inc., herein
called the Employer, alleging that Bricklayers and Masons Interna-
tional Union, Local No. 3,,and C. M. Fish, its agent, herein called
Bricklayers, and United Brotherhood of Carpenters and Joiners of
America, Local No. 98, and Tom Severn, its agent, herein called
Carpenters, had each respectively violated Section 8(b) (4) (D) of the
Act. Pursuant to notice, a hearing was held on May 21, 1963,, at
Spokane, Washington, before Hearing Officer Patrick H. 'Walker.
144 NLRB No. 119.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 from prejudical error and are hereby
affirmed.
Upon the entire record in this proceeding, the Board 1 makes the
following findings :
1. The business of the Employer
The Employer, a Washington corporation with its principal place
of business in Spokane, Washington, is engaged in specialty construc-
tion as a subcontractor. During the last fiscal year, it caused to be
shipped to it from outside the State of Washington, building materials
valued at approximately $80,000. During the same period, the Em-
ployer received approximately $233,000 as income for work performed
as a subcontractor in the States of Washington, Idaho, and Montana.
We find that the Employer is engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
2. The labor organizations involved
The Bricklayers and Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
3. The dispute
A. The basic dispute
The instant dispute arose over the assignment of certain caulking
work performed by the Employer on a school project in Hunter,
Washington. Under a subcontract from P & B Construction Com-
pany, Inc., the Employer agreed to perform work on the Hunter
school project consisting of the installation of aluminum and steel
windows, aluminum entrances, sliding doors, and caulking of the entire
building. The Employer'began work on the school project in March
1963,2 at which time it.assigned all the caulking work to employee
Raymond Retzel. At the, outset, Retzel, who did not belong to any
labor organization, was the only employee engaged in caulking work.
On March 28 Tom Severn, an agent of the Carpenters, visited the
project and observed Retzel caulking window installations. Severn
asked Retzel what union he belonged to and when Retzel replied that
'Pursuant to the ' provisions of Section 3(b) of the Act, the Board has delegated Its
powers In connection with . these cases to a three-member panel [Members Leedom, Fanning,
and Brown].
2 Unless otherwise Indicated, all events occurred in 1963.
BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1281
he was not a union member, Severn informed him that this work
would have to be done by a member of the Carpenters. On the follow-
ing day, Retzel made application for membership in the Carpenters
Union and was accepted. On April 1 or 2, Charles Fish, an agent
of Bricklayers, spoke to Retzel on the jobsite and informed him that
the caulking of window installations would have to be done by a
member of the Bricklayers. Thereafter on April 5, the Bricklayers
and Carpenters, through their International representatives, agreed
that the remianing caulking work on the window installations should
be divided equally among the members of each Union, on a 50-50 basis.
When the Employer was notified of this agreement, he refused to
accept this disposition of the dispute. Nevertheless, on April 9 the
Employer assigned a second employee, James Christie, to work with
Retzel in performing caulking work. On April 10 Fish of the Brick-
layers observed Christie working on the job and asked him if he be-
longed to a union. When Christie replied in the negative, Fish in-
formed employees that the job would be picketed. Picketing com-
menced at noon on April 10 with Fish carrying a sign bearing the
legend : "Engineered Specialties Co. unfair to Bricklayers Local No.
3. Misassignment of work." As a result of the picketing, all craft
employees of the Employer and the general contractor left the job.
The employees returned to the jobsite on April 15, but when the Brick-
layers learned that the employees of the Employer were back on the
job, picketing was resumed and the craft employees ceased work until
the Employer's employees left the job. Approximately a week later,
employee Christie became a member of Bricklayers' Union and the
Employer has continued its work on the project without further
incident.
B. Contentions of the parties
No party denies that the instant controversy arose out of a juris-
dictional dispute. However, both the Carpenters and the Bricklayers
seemingly take the position that the dispute has been resolved by
their agreement of April 5 and, therefore, that the Board should treat
this agreement as a voluntary settlement of the dispute. The Em-
ployer contends that the dispute cannot be considered resolved inas-
much as the settlement entered into by Carpenters and Bricklayers
was without its approval.
C. Applicability of the statute
Before the Board proceeds with a determination of dispute pursuant
to Section 10 (k) of the Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b) (4) (D) has been violated. As set
forth in section A , above, there does not appear to be sufficient evi-
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dance to establish reasonable cause for believing that Respondent
Carpenters violated Section 8 (b) (4) (D ) of the Act. However, there
is uncontroverted evidence that Respondent Bricklayers picketed the
school project for the purpose of forcing the Employer to reassign
part of the the caulking work to members of its union. This conduct
by Respondent Bricklayers is sufficient to establish reasonable cause
for believing that a violation of Section 8(b) (4) (D ) of the Act has
occurred . In such circumstances , we are required to proceed to a
determination of the dispute .' However, Carpenters and Bricklayers
contend that the dispute has been resolved by their agreement of
April 5, and that the Board should accept this settlement as dispositive
of the issue. We do not agree . While it is true the Employer is
presently operating under the terms of the April 5 agreement, it is
clear that the Employer has been forced to comply with the agree-
ment in order to avoid further Section 8 (b) (4) (D) violations by
Respondent Bricklayers . At no time was the Employer a party to the
April 5 agreement , and in fact it did and still does protest the Unions'
asserted disposition of the dispute. Hence, it cannot be said that all
parties have entered into a voluntary settlement of the dispute.
Therefore , as we find the dispute was not resolved by the April 5
agreement between Carpenters and Bricklayers , we shall proceed to
a determination of the merits of the dispute.
4. The merits of the dispute
The work in dispute consists of the caulking of window installations
at the school project. Caulking work is performed with a Thiokol
mixture, which consists of a base substance mixed at the jobsite with
a catalytic agent and applied to the structure by means of a pressure
gun.
Although both the Carpenters and the Bricklayers would have the
Board award the disputed work equally to the members of their
respective Unions, it is apparent that such a division of the work
would be arbitrary in nature, rather than based upon legitimate juris-
dictional claims. In our view, we would not be meeting our responsi-
bilities under the Act if we were to accept such an arbitrary division
of the work as the basis for our award. Rather, we see our duty as
one requiring us to make our determination based upon an evaluation
of the evidence supporting the respective claims. The merits of these
respective claims can, we think, be best established by weighing the
following factors : 4
'N L.R.B. v. Radio & Television Broadcast Engineers ' Union, Local $ 12, etc ( Columbia
Broadcasting System ), 364 U.S. 573.
'Certain factors normally considered by the Board in making jurisdictional awards are
not present in this proceeding . These would include Board certifications , awards by joint
boards, and industry and area practices.
BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1283
A. The skills involved
The record evidence establishes that an individual would require
several months' training before he would be sufficiently experienced in
the use of the Thiokol compound to perform all aspects of the caulk-
ing operation without supervision. In most instances, the Employer
makes it a practice to assign all of the caulking work to one employee.
Both the Carpenters and the Bricklayers allege that members of their
respective Unions are trained in caulking work. However, the record
is vague as to whether, by reason of training, these members would
be qualified to perform all of the various caulking operations required
on this job. With respect to the two employees presently performing
the work in dispute, the record, shows that employee Retzel, who is
a carpenter by trade, is fully qualified to perform all aspects of the
caulking operation, but that employee Christie, who was formerly a
laborer, is less experienced and works under Retzel's supervision.
Therefore, as Retzel, who is a member of the Carpenters Union, is the
only employee who on the basis of the record possesses all the requisite
skills necessary, we find this factor to favor the claim of the
Carpenters.
B. Collective-bargaining agreements
Currently in existence are short-form agreements between the Em-
ployer and the Carpenters and the Bricklayers, respectively. Under
the terms of these agreements, the Employer agrees to be further
bound by the agreements in existence between the Carpenters and the
Bricklayers and Eastern Washington Builders Chapter of the Asso-
ciated General Contractors of America, Inc. Neither the Carpenters
nor the Bricklayers has been able to point to any provision in these
agreements which would, support its respective claim to the disputed
work. Nor has our examination of these agreements uncovered any
evidence which would support either claim. Hence, we conclude that
the collective-bargaining agreements favor neither Union's claim.
C. Employer's assignment and past practices
The Employer employs individuals in the classifications of carpen-
ters, glaziers, and laborers. Since 1958, the Employer has performed
caulking work on 60 jobs, and in all but 1 instance the work has been
performed by a carpenter. The sole exception involved work on a
church- project in 1960, and in that instance the caulking work was
jointly assigned to a carpenter and a brick mason. Consistent with
this practice, the Employer first assigned the disputed work to Retzel,
a carpenter by trade, who is now a member of the Carpenters Union.
While it is true the Employer presently has a member of the Car-
penters and of the Bricklayers performing the caulking work, the
record is clear that the Employer contemplated assigning the work to
727-083-64-vol. 141-52
1284 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only one employee. Hence, we believe that, under these circumstances,
more weight should be given to the Employer's initial assignment.
Accordingly, we find the Employer's assignment and past practices
to favor the claim of the Carpenters.
D. Economy of operation
The record establishes that it is customary for all the caulking work
to be assigned to one individual. Based upon the record before us,
the only employee who possesses all the requisite skills to perform all
of the disputed work is employee Retzel, who is a member of Carpen-
ters Union. Hence, as the only individual clearly qualified is a
member of the Carpenters, we conclude that this factor favors the
Carpenters' claim.
Conclusions as to the Merits of the Dispute
On the basis of the evidence set forth under the above-enumerated
factors, we conclude that carpenters are entitled to the disputed work
herein. Accordingly, we shall determine the existing jurisdictional
dispute by deciding that the carpenter represented by the Carpenters
Union, rather than the caulker represented by the Bricklayers Union,
is entitled to the work in question. In making this determination,
we are assigning the disputed work to the carpenter who is repre-
sented by the Carpenters Union, but not to Carpenters Union or its
members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
these cases, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act.
1. The carpenter who is represented by United Brotherhood of
Carpenters and Joiners of America, Local No. 98, is entitled to per-
form all the caulking work on window installations at the Hunter,
Washington, school project.
2. Bricklayers and Masons International Union, Local No. 3, and
C. M. Fish, its agent, is not and has not been lawfully entitled to
force or require Engineered Building Specialties, Inc., to assign the
above work to employees represented by Bricklayers and Masons
International Union, Local No. 3.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Bricklayers and, Masons International Union, Local No. 3,
and C. M. Fish, its agent, shall notify the Regional Director for the
Nineteenth Region, in writing, whether or not it will refrain from
forcing or requiring Engineered Building Specialties, Inc., by means
proscribed by Section 8(b) (4) (D), to assign the work in dispute to
members of their Union, rather than to carpenters.