Carpenters District Council of Denver & Vicinity

National Labor Relations Board - Board Decisions

Apr 30, 1964

146 N.L.R.B. 1242 (N.L.R.B. 1964)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters District Council of Denver & Vicinity , AFL-CIO,
and J . O. Veteto and Son . Cases Nos. 27-C,D-46 and 27-CI)-
46-2. April 30, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the Act following
ch4Tges filed by Wood, Wire and Metal Lathers, Local Union 68,.AFIr-
CIO, herein called the Lathers, and by J. O. Veteto and Son, herein
called the Employer, alleging that Carpenters District Council of
Denver & Vicinity, AFL-CIO, herein called the Respondent, had in-
duced and encouraged employees to strike for the purpose of forcing
or requiring the Employer to assign particular work to members of the
Respondent rather than to members of the Lathers. A hearing was
held before Hearing Officer Allison E. Nutt on December 19 and 20,
1963. All parties appeared at the hearing and were afforded full op-
portunity 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 prejudicial error and are
hereby affirmed. The Respondent and the Lathers filed briefs which
have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board makes the following
findings:
I. The business of the Employer
J. O. Veteto and Son is engaged in the lathing and plastering busi-
ness in Colorado and adjoining States. In the calendar year of 1962,
Veteto performed services in the State of Wyoming valued at more
than $100,000 and, in the calendar year of 1963, purchased materials-
valued at more than $100,000 from suppliers in Colorado, who received
the goods from manufacturers located in other States. We find that
Veteto is engaged in commerce within the meaning of the Act.
2. The labor organizations involved
Respondent and the Lathers are labor organizations within the
meaning of Section 2 (5) of the Act.
3. The dispute
The Work in Issue
Metal studs used in the erection of interior walls or partitions receive
a surface of either plaster or dry wall material. The work in dispute
146 NLRB No. 133.
CARPENTERS DISTRICT COUNCIL OF DENVER & VICINITY 1243
here is the installation of metal studs which are to receive dry wall
material.
The Basic Facts
The Employer has a subcontract to install inside partitions in the
Security Life Building, a 31-story office building under construction in
Denver, Colorado. Contract specifications call for installation of nail-
able or screwable steel studs to be covered by gypsum board or other
dry materials. The studs are installed by placing metal tracks on
floors and ceilings, into which vertical steel studs are placed and se=
cured in position with screws or nails, after which the covering mate-
rial is applied with either nails, screws, clips, or wires.
The Employer has a collective-bargaining agreement with the
Lathers and does not employ carpenters. On about October 1, 1963,
the installation of metal studs was assigned to employees who were
members of the Lathers. A week later a representative of Respondent
contacted the Employer and claimed the work in question for mem-
bers of his union. On November 15, at which time no studs were being
installed, the National Joint Board for Settlement of Jurisdictional
Disputes awarded the disputed work to the carpenters. The Em-
ployer not only had not joined in the submission of the dispute to the
Joint Board but later affirmatively indicated its resolution not to be
bound by the award of the Joint Board. Erection of metal studs was
resumed by the lathers on December 4, 1963, and Respondent picketed
the jobsite. Carpenters left the job when the pickets appeared but
the lathers continued to work until all studding previously laid out
had been installed. The general contractor asked the Employer to de-
lay further installation of metal studs while the general contractor
would attempt to resolve the'dispute.. Up to the time of hearing no
further studs had been installed.
Contentions of the Parties
Respondent claims the disputed work of installing metal studs which
are to receive dry wall covering on the basis of a 1962 agreement be-
tween the two International Unions herein concerned which, as-
sertedly, is still in effect and recognizes that work of the type in dis-
put belongs to carpenters. It also relies upon the November 15, 1963,
decision of the National Joint Board for Settlement of Jurisdictional
Disputes. Respondent further contends that its claim is supported by
area and industry practice and that installation of studding is a tradi-
tional function of.carpenters.
The Lathers similarly relies upon area and industry practice to sup-
port its claim and contends that installation of steel studding is an
integral part of the lather's trade which should be performed . by
lathers regardless of the type of material to be attached to the studs.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. The Employer states that the work has been assigned to lathers
because he does not employ carpenters; that since the work is inter-
mittent it would be inefficient to replace the lathers, who can perform
it when not otherwise occupied; and that his collective-bargaining
agreement with the Lathers requires the assignment of the work to that
Union.
Applicability of the Statute
Charges herein allege a violation of Section 8 (b) (4) (D) of the Act.
The record shows, and Respondent does not deny, that, on about
December 4, 1963, when the Employer began installation of metal
studs erected by Lathers, and refused to comply with the award of
the National Joint Board, Respondent commenced picketing the job
with signs stating that the Employer had no agreement with Respond-
ent. Picketing ceased only when the Employer agreed to delay per-
formance of the disputed work. Respondent concedes, for the pur-
poses of this proceeding, that there is reasonable cause to believe that
a violation of Section 8(b) (4) (D) has occurred.
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
Section 10(k) of the Act requires the Board to make an affirmative
award of disputed work, after giving due consideration to various
relevant factors. The following factors are asserted in support of
the claims of the parties herein :
1. Collective-bargaining agreements: Lathers and the Employer
have a collective-bargaining agreement covering the employees to
whom the Employer assigned the work in dispute. Respondent has
no. contract with the Employer, who has never employed carpenters.
Lathers contends that its agreement specifically covers the work in
dispute. However, similar contract language has heretofore been
considered by the Board' and it was held that, although it refers to
the installation of certain metal studs, it does not treat specifically with
metal studs which are to receive a dry wall covering.
2. Company, area, and industry practice: Although both disputants
offered considerable evidence on area and industry practice, the re-
sults of their efforts are inconclusive. Since the Employer has never
employed carpenters and has used lathers exclusively for installing
metal studs, the assignment of this work to the lathers is in accord
with the Employer's past practice.
'Local 964, United Brotherhood of Carpenters and Joiners of America, AFL-CIO
( Carleton Brothers Company ), 141 NLRB 1138.
CARPENTERS' DISTRICT COUNCIL OF DENVER & VICINITY -1245
. 3. Efficiency of operation: It is not contended that either lathers
or carpenters lack the skills or ability to erect metal studs. The Re-
spondent, however, does not claim the right to install all steel studs
to be used in the building; its demand is limited to only such steel
studs as will receive a dry wall covering. In addition, Respondent
does not lay claim to installation of either the floor and ceiling run-
ners to which the studs are attached or to the furring channels or
stiffeners which are inserted into and across the steel studs. Perform-
ance of the disputed work by the Respondent would, therefore, ne-
cessitate the division of the entire operation of preparing a wall area
for its finishing covering between two craft groups with one install-
ing the runners and furring and the other installing only the studs
in each partition designed to receive dry wall covering. Clearly, the
installation of floor and ceiling tracks, metal studs and bracing
material is performed more efficiently when done as a continuous, in-
tegrated operation by a single craft group. The Employer's assign-
ment of the disputed work to lathers is therefore consistent with ef-
ficiency of operation in the erection of interior partitions.
4. Action of the Joint Board: Both unions cite numerous decisions
of the National Joint Board to support their'claim to the disputed
work. In addition, Respondent urges that in the instant dispute the
Joint Board, in its decision issued on November 15, 1963, has awarded
the work to it. The Employer, however, had not agreed to be' bound
by a decision of the Joint Board in this matter, and the decision by
that body is merely one of the factors which we must consider in as-
signing the disputed work'
5. The Interim Agreement: The Respondent relies heavily upon the
Interim Agreement of January 6, 1962, between international rep-
resentatives of the contending organizations, which purports to divide
the disputed work between lathers and carpenters by assigning to car-
penters, "The installation of metal studs-nailable or nonnailable-to
receive finished material other than plaster or sprayed-on or trowel-
applied materials done by Plasterers . . . ." Respondent contends
that this Interim Agreement, which the Lathers contends has in fact
been abrogated by the parties thereto, should be dispositive of the in-
stant dispute, as it was in the recent case of Acoustics d Specialties,
Inc.3 It appears, however, that the Acoustics case is a distinguishable
one. In according determinative weight to the Interim Agreement in
Acoustics, the Board noted that the criteria which had been determi-
native in most jurisdictional dispute cases previously decided were
not present there and in that "state of balance" it considered it ap-
s See Local 964, United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
footnote 1, supra.
s Local Union No . 68, Wood , Wire and Metal Lathers International Union, AFL-CIO
(Acoustics & Specialties, inc.), 142 NLRB 1073.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriate to give effect to the Interim Agreement. Clearly, the "state.
of balance" which imparted decisive impact to the Interim Agree-
ment in Acoustics does not obtain here. Even assuming it to be still
in force, therefore, the Interim Agreement is not entitled to the con-
trolling effect accorded it in Acoustics.'
Conclusion as to the Merits of the Dispute
Upon consideration of all pertinent factors appearing in the entire
record we shall assign the work in dispute to the lathers. They are as
skilled in the performance of the work as the carpenters who compete
for it and have performed it to the satisfaction of the Employer, who
desires to retain them on the job. The present assignment of the dis-
puted work to the lathers is consistent with their collective-bargaining
agreement with the Employer, it conforms to the Employer's past
practice, and the efficiency with which the lathers may accomplish the
integrated task of preparing partitions for final covering in a single
sequential operation demonstrates the superior claim of the lathers to
the disputed work. We conclude that the Employer's assignment of
the work to the lathers should not be disturbed. We shall, accord-
ingly, determine the existing jurisdictional dispute by deciding that
lathers, rather than carpenters, are entitled to the work in .dispute. In
making this determination, we are assigning the disputed work to the
employees of the Employer who are represented by the Lathers but
not to that Union or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following determination of dis-
pute pursuant to Section 10 (k) of the Act :
1. Lathers employed by J. O. Veteto and Son, who are represented
by Wood, Wire and Metal Lathers Local Union No. 68, AFL-CIO,
are entitled to perform the work of erecting metal studs to receive dry
wall on interior partitions in the Security Life Building in Denver,
Colorado.
2. Carpenters District Council of Denver and Vicinity, AFL-CIO,
is not entitled, by means proscribed by Section 8 (b) (4) (D) of the Act,
to force or require the Employer to assign the above work to
carpenters.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Carpenters District Council of Denver & Vicinity, AFL-
--I For the reasons stated in his dissenting opinion in Acaustics c Specialties , Inc., supra,
in which he disagreed with the majority conclusion that this Interim Agreement was
there entitled to controlling weight, Member Leedom agrees that such agreement is not
entitled to controlling weight herein.
LABORATORY EQUIPMENT CORPORATION, ETC. 1247
CIO, shall notify the Regional Director for the Twenty-seventh
Region, in writing, whether it will or will not refrain from forcing or
requiring the Employer, by means proscribed by Section 8 (b) (4) (D),
to assign the work in dispute to carpenters rather than lathers.
Laboratory Equipment Corporation ; Carl E . Schultz, Joseph A.
Sauer, and George J. Krasl , a Co-partnership , d/b/a Leco
Plating Company and District Lodge 39 of the International
Association of Machinists, AFL-CIO. Case No. 7-CA-4213,
May 1, 1964
DECISION AND ORDER
On December 20, 1963, Trial Examiner Sydney S. Asher, Jr., issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent filed cross-
exceptions and a supporting brief.
Pursuant to'the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the General Counsel's exceptions and brief, the
Respondent's cross-exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
On May 1, 1963 , District Lodge 39 of the International Association of Machinists,
AFL-CIO, herein called the Union , filed charges against Laboratory Equipment
Corporation , St. Joseph , Michigan , herein called Respondent Corporation , and Carl
E. Schultz, Joseph A . Sauer, and George J. Krasl , a co-partnership , d/b/a Leco
Plating Company , St. Joseph, Michigan , herein called Respondent Partnership. The
General Counsel 1 issued a complaint on June 12 , 1963 , alleging that since on or
about March 22, 1963 , the Respondents , by certain specified conduct , have interfered
with , restrained , and coerced their employees , and that Respondents discharged Walter
Lausman , an employee , on April 4 , 1963, and since then have failed and refused to
reinstate him, because he joined or assisted the Union or engaged in other concerted
1 The term "General Counsel " refers to the General Counsel of the National Labor Rela-
tions Board and his representatives at the hearing.
146 NLRB No. 160.
744-670-65-vol. 146-80