Carpenters District Council for Kansas City and Vicinity

National Labor Relations Board - Board Decisions

May 12, 1975

217 N.L.R.B. 928 (N.L.R.B. 1975)

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America , District Council for Kansas City and
Vicinity , AFL-CIO, and United Brotherhood of
Carpenters and Joiners of America, Local 1271,
AFL-CIO' and Springfield Metal Building Com-
pany and Fram Corporation , Case 17-CD-186
May 12, 1975
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY MEMBERS FANNING, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Springfield Metal Building Company,
Springfield, Missouri, herein called the Charging
Party, alleging that United Brotherhood of Carpenters
and Joiners of America, District Council for Kansas
City and Vicinity, AFL-CIO, and United Brotherhood
of Carpenters and Joiners of America, Local 1271,
AFL-CIO, herein called the Respondents or Carpen-
ters, have violated Section 8(b)(4)(D) of the Act. The
charge alleges, in essence, that the Carpenters, in viola-
tion of the Act, threatened and actually took economic
action against the Fram Corporation, herein called the
Employer, to force the Fram Corporation to assign
particular work to members of the Carpenters rather
than to the corporation's own employees.
A hearing was held before Hearing Officer Ward
Summerville in January 1975. The Charging Party, the
Employer, and the Carpenters entered an appearance
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. Thereafter, the
Employer filed a brief.
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 rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this proceeding, the Board
makes the following findings:
I BUSINESS OF THE COMPANY
Fram Corporation is a Delaware corporation main-
taining its general offices in East Providence, Rhode
Island, and plants in Phillipsdale, Rhode Island;
Greenville, Ohio; Clearfield, Utah; and Dexter, Mis-
souri. This proceeding involves the construction of its
1 The names of the labor organizations are amended to appear as stipu-
lated at the hearing
plant at Nevada, Missouri. During the past 12 months,
it purchased goods and materials directly from sources
outside the State of Missouri of a value in excess of
$50,000. We find that Frain Corporation is engaged in
commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert jurisdic-
tion herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Re-
spondents are labor organizations within the meaning
of Section 2(5) of the Act.
III DISPUTE
A. Summary of Some of the Testimonial Evidence
Frain Corporation entered into a contract with the
Charging Party who has, since April 1974, functioned
as the general contractor constructinga Frain Corpora-
tion plant in Nevada, Missouri. It is Fram's intention
to manufacture large air cleaner housings and car-
tridges at this plant. The processes to be used in such
manufacturing include sheet metal forming with punch
presses, filter paper pleating and curing, spot welding,
degreasing, painting, baking, assembling, and packag-
ing.
By early September 1974, construction of the new
building was sufficiently completed so that Fram could
begin bringing in machinery to be set up for the manu-
facturing process. Around that time, the Employer be-
gan to hire maintenance employees to unload, set up,
and install the production machinery.
During the first week of September, after the unload-
ing of machinery had begun, Plant Manager Jay O'Neil
testified that he was visited by Kenneth Marshall and
William J. Ruby, Jr., two of the Carpenters District
Council's business representatives. At that time, Ruby
told O'Neil that, "We're going to set up your equip-
ment for you." Ruby and Marshall explained to O'Neil
that millwrights were included within the Carpenters
District Council and that the type of work Fram em-
ployees were engaged in was "their work and they
should be doing it." O'Neil explained to them that it
was Fram's policy to hire its own employees to perform
this work and that the Employer was paying them area
standard wages for maintenance employees based on a
wage survey conducted by the Employer.
Both Marshall and Ruby gave testimony which con-
flicts with O'Neil's version of the meeting. In particu-
lar, both testified that they were never informed that
the Employer planned on assigning the millwright
work to its own employees.
In early October after erection and installation of the
plant production machinery was started, Marshall
217 NLRB No. 140
CARPENTERS DISTRICT COUNCIL FOR KANSAS CITY AND VICINITY
again visited the plant. According to O'Neil, Marshall
once again told O'Neil that the type of work Fram
employees were doing was millwright work and that it
should be assigned to the Carpenters. O'Neil testified
that, after he told Marshall that the Employer planned
to continue using Fram employees to do the installing,
Marshall reminded him that the building was not yet
completed, that there were plumbers, electricians, and
sheet metal employees still doing their respective types
of work, and that "something could happen to slow or
stop the work on the building." O'Neil accused Mar-
shall of threatening illegal conduct and Marshall de-
nied that was his intent.
Marshall admitted that, at the time of this meeting,
he knew that the Employer planned on assigning the
work to its maintenance employees and that he did
state that other union members of the site might be
affected by any problems over the assignment of the
work.
O'Neil testified that on October 14 he was visited
once again by Marshall and Ruby who were accom-
panied by the business representatives of three of the
unions whose members were working on the construc-
tion site. According to O'Neil he was asked by Mainey,
the plumbers' business representative, what wages were
being paid the maintenance employees and why, if
other union members were working on the site, did
Frain hire its own employees to do the millwright
work. O'Neil testified that at the conclusion of their
discussion Mainey said to Marshall and the others with
hire, "There is nothing else to do here, let's go do what
we have to."
At the hearing, Marshall denied attending this meet-
ing and Ruby testified that the conversation as related
by O'Neil never occurred.
Ruby testified that a few days later he visited the
plant again and that, after O'Neil told him that Fram's
employees doing the millwright work were being paid
$3.50 to $5 per hour, he told O'Neil that the people
doing this type of work should be paid the area stand-
ard wage for millwrights which was $8.62 per hour plus
93 cents "fringes."
In a letter dated October 28, 1974, the Carpenters
claimed jurisdiction of the millwright work being per-
formed at the Nevada, Missouri, plant. After asserting
that Fram was not paying union scale rates to the
employees performing the millwright work, the letter
informed the Employer that the Carpenters intended to
use picket signs for the sole purpose of letting the gen-
eraJ public know that the Employer was "maintaining
sub-standard wage rates and working conditions for the
persons performing millwright work. . . ." The pick-
eting began on October 31 and continued until Novem-
ber 7, when the Respondents were satisfied that no
929
millwright work was then being performed by Fram's
maintenance employees.
After picketing began, the Employer established an
entrance for its employees and suppliers and a separate
entrance for the Charging Party's employees, its sub-
contractors, and their suppliers. Each entrance was
marked with signs explaining whose employees were to
use the gate. The Respondents picketed both gates, and
two witnesses, one of whom was a foreman for the
Charging Party and the other an employee for a sub-
contractor, testified that they were encouraged by one
of the pickets not to cross the picket line. As a result
of the picketing construction slowed "almost to a halt."
Following the termination of picketing, O'Neil met
with Henry Brown, president of the Carpenters Dis-
trict Council, and Business Representative Marshall.
The testimony describing this meeting conflicts. O'Neil
testified that the purpose of the meeting was to resolve
the differences between the Carpenters and Fram and
that during the meeting, to satisfy the Respondents, he
suggested that two union millwrights be hired by Fram.
According to O'Neil, at no time during the meeting was
the subject of area standard wages for the employees
doing the millwright work discussed. Brown testified
that their only purpose in attending the meeting was to
secure for the employees doing millwright work the
prevailing wages paid union millwrights and that it was
O'Neil's suggestion that two of Respondent's members
be hired. O'Neil testified that these two men were never
in fact hired because the Employer's general offices
would not accept the arrangement.
The millwright work, with Fram's employees per-
forming it, resumed in early December and it is an-
ticipated that it will continue until at least July 1975.
B. Work in Dispute
The work in dispute consists of the unloading, in-
stalling, and setting up of the plant production machin-
ery and equipment at the Fram Corporation plant at
Nevada, Missouri.
C. Contention of the Parties
The Employer contends that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vi-
olated. It asserts that, during the September and Octo-
ber meetings at the plant, Respondents never requested
that area standard wages for millwrights be paid to the
Employer's maintenance employees. In its view, the
evidence supports the findings, that, after the work was
begun, the Respondents requested that the work be
given to their members and then threatened to slow
down completion of the plant and picketed the con-
struction site in an attempt to force a reassignment.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
The Employer also contends that , considering the
skills of the employees , efficiency and economy of oper-
ation, company practice , job impact , and the Em-
ployer 's preference , the work should remain, as as-
signed , with the maintenance employees.
Finally , the Employer urges the Board to reject the
Respondents ' disclaimer of interest submitted at the
hearing . It argues that a disclaimer is not supported by
the evidence , does not alter the nature of this dispute,
and that its language reflects Respondents ' continuing
interest in the work.
The Carpenters contends that there are no compet-
ing claims to the work under consideration . The Car-
penters argued at the hearing that after they were in-
formed that the Employer intended to assign the
millwright work to the maintenance employees, their
only interest was in securing area standard wages for
the employees involved.
Throughout the hearing , the Respondents claimed
no interest in having the Employer assign the work to
their members . They argued that prior to the picketing
they informed the Employer that their only interest was
in securing area standard wages for the maintenance
employees and, in further evidence of their position,
they submitted a written disclaimer into evidence at the
hearing.
D. Applicability of the Statute
Section 10(k) of the Act directs the Board to hear
and determine disputes out of which 8(b)(4)(D) charges
have arisen in circumstances where the assignment of
the work is in dispute.
In this case, we find it unnecessary to make any
determinations with respect to the positions advanced
by the parties . While it may be true that conflicting
claims to the work involved did exist , the Respondents
continually stated at the hearing no interest in an as-
signment of the work involved . At the close of the
hearing they submitted into evidence a written dis-
claimer which stated , among other things, their lack of
interest in an assignment of the work or in an award in
this proceeding.' There is no evidence, that, since the
resumption of the work in December, the Respondents
have manifested desires or taken action inconsistent
with their disclaimer.
In these,circumstances, we agree with Respondents'
contention that the assignment of the work is not in
dispute and we shall therefore quash the notice of
hearing?
ORDER
It is hereby ordered that the notice of hearing issued
in this case be, and it hereby is, quashed.
2 In pertinent part, Respondent stated in the written disclaimer
Comes now United Brotherhood of Carpenters and Joiners of
America, District Council of Kansas City and Vicinity, and its affiliated
Local Union No 1271, AFL-CIO, and, herewith, formally and of
record in this case, disclaim any desire, intent, object or purpose of
forcing or requiring Fram Corporation to assign the work of unloading,
installing and setting up the plant production machinery and equipment
at the Fram Corporation plant building at or near Nevada, Missouri, to
these labor organizations rather than to employees of the Fram Corpo-
ration, or to have the Fram Corporation discharge, terminate or transfer
the employees who are now performing the said work and replace them
with millwright members of these labor organizations Disclaimers of
any such desire, intent, object or purpose was, previously, given by
these labor organizations in its letter to the Fram Corporation dated
October 28, 1974, copies of which are introduced in evidence in these
proceedings
These labor organizations do not seek, and have not at any time while
the said work was being performed sought, an assignment of the afore-
said work They do not seek or desire an award in regard to the said
work in this proceeding, and respectfully submit that, under the facts
in this case, the National Labor Relations Board does not have jurisdic-
tion to proceed either under Section 8(b)(4)(D) or Section 10(k) of the
Labor Management Relations Act, and move and request that this
proceeding be dismissed- -
3 Sheet Metal Workers Local Union No 465 (Thorpe Insulation
Company), 198 NLRB 1245 (1972), Local 1905, Carpet, Linoleum & Soft
Tile Layers (Southwestern Floor Co), 143 NLRB 251 (1963), Millwrights
and Machinery Erectors Local 1102, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Port Huron Sulphite and Paper Company),
140 NLRB 79 (1962).