Carpenters Local 1207 (Carlton, Inc.)

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 71 (N.L.R.B. 1993)

71
313 NLRB No. 4
CARPENTERS LOCAL 1207 (CARLTON, INC.)
1 All dates are in 1993 unless indicated otherwise.
2 The hearing officer rejected Bricklayers’ Exh. 5 on the grounds
that the document, a copy of a letter from the Tile Contractors’ As-
sociation of America, Inc. to the general president of Carpenters, did
not constitute a business record. Bricklayers excepts to the hearing
officer’s ruling and requests that the record be amended to include
the document. We find no merit to Bricklayers’ exception. Brick-
layers has not established that the document was kept by Bricklayers
in the course of regularly conducted business activity. Thus, it does
not qualify under the business record exception to the hearsay rule.
See Fed.R.Evid. 803(6). Accordingly, we find that the document
constitutes inadmissible hearsay and thus affirm the hearing officer’s
ruling.
3 The record does not indicate whether Smith conferred with
Campbell before or after Bricklayers filed its grievance against
Carlton.
United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1207, AFL–CIO
(Carlton, Inc.) and Fred F. Holroyd and Camp-
bell Tile Company. Case 9–CD–470
November 23, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed by Fred F. Holroyd, alleging that the Respondent,
United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1207, AFL–CIO (Car-
penters), violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing Campbell Tile Company
(Campbell) to continue assigning certain work to em-
ployees it represents rather than to employees rep-
resented by International Union of Bricklayers and Al-
lied Craftsmen, Local Union 9, AFL–CIO (Brick-
layers). The hearing was held August 20, 1993,1 before
Hearing Officer Linda B. Finch.
The National Labor Relations Board affirms the
hearing officer’s rulings,2 finding them free from prej-
udicial error. On the entire record, the Board makes
the following findings.
I. JURISDICTION
Carlton, Inc. (Carlton), a West Virginia corporation,
is a general contractor in the building and construction
industry. During the 12 months preceding the hearing,
a representative period, Carlton purchased goods and
materials in excess of $50,000 from points outside the
State of West Virginia which it caused to be shipped
into the State of West Virginia.
Campbell, a West Virginia corporation, is a tile spe-
cialty operation. During the 12 months preceding the
hearing, a representative period, Campbell purchased
goods and materials valued in excess of $50,000 from
outside the State of West Virginia which is caused to
be shipped into the State of West Virginia.
The parties stipulated, and we find, that Campbell
and Carlton are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Carpenters and Bricklayers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Carlton is signatory to collective-bargaining agree-
ments with Carpenters and Bricklayers respectively.
Both agreements cover tilesetting work. Carlton’s
agreement with Bricklayers prohibits Carlton from sub-
contracting work covered by the agreement unless the
subcontractor agrees in writing to be bound by the
terms of the Carlton-Bricklayers’ agreement. Carlton’s
contract with Carpenters also prohibits subcontracting
of covered work unless the subcontractor is signatory
to an agreement with Carpenters or unless the sub-
contractor agrees to be bound by the terms of the
Carlton-Carpenters’ agreement.
In July 1992, the State of West Virginia contracted
with Carlton for the construction of the Mount Olive
Correction Facility in Fayette County, West Virginia.
In March, Carlton and Campbell entered into a sub-
contracting agreement providing for Campbell to per-
form tilesetting work at the Mount Olive facility. On
June 7, Campbell entered into a collective-bargaining
agreement with Carpenters covering, inter alia, tile-
setting work performed by Campbell. In early July,
Campbell began performing the tilesetting work at
Mount Olive using employees represented by Car-
penters.
Thereafter, in early July, Bricklayers learned that
Carlton had subcontracted the Mount Olive tilesetting
work to Campbell. Concerned that Carlton had violated
the subcontracting clause of its contract with Brick-
layers, Bricklayers’ district counsel director, Leroy
Hunter, sought a meeting with Carlton officials to re-
solve the issue. Hunter was unable, however, to ar-
range a meeting with Carlton officials, and thus Brick-
layers filed a grievance against Carlton alleging that
Carlton violated the subcontracting clause of its con-
tract with Bricklayers. The grievance was set for arbi-
tration. In addition, Bricklayers’ field staff representa-
tive, Herbert Smith, contacted Campbell President
Elmer Campbell and told him the Mount Olive tile-
setting work belonged to employees represented by
Bricklayers.3
By letter dated July 13, Carpenters’ business rep-
resentative, Robert Sutphin, informed Elmer Campbell
that Carpenters expected Campbell to honor its con-
tract with Carpenters, and that if Campbell did not as-
sign the work accordingly, Carpenters would picket the
Mount Olive jobsite.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Member Devaney finds, for the reasons stated in Laborers Local
731 (Slattery Associates), 298 NLRB 787, 790 (1990), that Brick-
layers’ demand for the disputed work, as well as its filing a griev-
ance over this subject, clearly demonstrates that Bricklayers has
made a competing claim for the work.
Member Raudabaugh finds that this case is distinguishable from
Laborers Local 731 (Slattery Associates), supra. In Slattery, the
union filed a grievance against the general contractor seeking only
monetary damages. Here, Bricklayers has made an explicit claim for
the disputed work and does not contend that its grievance against
Carlton is limited to monetary damages. Accordingly, without decid-
ing whether Slattery was correctly decided, Member Raudabaugh
would find reasonable cause to believe that Bricklayers’ conduct
constitutes a claim for work in the circumstances of this case.
5 Bricklayers now moves to amend the record to include a docu-
ment purporting to be a collective-bargaining agreement between
Campbell and Bricklayers. We deny Bricklayers’ motion on the
grounds that the document has not been authenticated.
6 Bricklayers also contends that its collective-bargaining agreement
with Carlton encompasses the disputed work. Assuming arguendo
that the disputed work is encompassed by Bricklayers’ agreement
with Carlton, this factor would not be relevant to the determination
of this dispute. Under these circumstances, the Board has determined
that it is the subcontractor’s collective-bargaining agreements, and
not those of the general contractor, that are relevant. See Operating
Engineers Local 139 (McWad, Inc.), 262 NLRB 1300, 1303 fn. 12
(1982). The Board has stated that the ‘‘[general contractor’s] con-
tractual obligations cannot be conferred upon [the subcontractor], ab-
sent record evidence establishing that [the subcontractor] had agreed
to be bound by those obligations.’’ Iron Workers Local 21 (Lueder
Construction), 233 NLRB 1139, 1140 (1977).
B. Work in Dispute
This disputed work involves the performance of tile-
setting work at the Mount Olive Correction Facility in
Fayette County, West Virginia.
C. Contentions of the Parties
Campbell and Carlton contend that there is reason-
able cause to believe that Carpenters violated Section
8(b)(4)(D) of the Act by threatening to picket, and that
the work in dispute should be awarded to employees
represented by Carpenters on the basis of collective-
bargaining agreements, employer preference and past
practice, area and industry practice, and economy and
efficiency of operations.
Bricklayers contends that the instant case does not
involve a jurisdictional dispute, but rather involves a
contractual dispute to be resolved through arbitration
of Bricklayers’ grievance against Carlton. Alter-
natively, if the Board finds the instant case constitutes
a jurisdictional dispute, Bricklayers contends the work
in dispute should be assigned to employees it rep-
resents on the basis of collective-bargaining agree-
ments, area and industry practice, relative skills, and
economy and efficiency of operations.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated and that the parties have not agreed on a method
for the voluntary adjustment of the dispute. As dis-
cussed above, Carpenters’ business representative,
Sutphin, in essence informed Campbell President
Elmer Campbell that Carpenters would picket the
Mount Olive jobsite if Campbell reassigned the dis-
puted work to employees represented by Bricklayers.
The record reveals no agreed-upon method for vol-
untary adjustment of the dispute binding on all parties.
In light of the foregoing, we find reasonable cause
to believe that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed method for vol-
untary adjustment of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that the
dispute is properly before the Board for determina-
tion.4
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
On June 7, Campbell entered into a collective-bar-
gaining agreement with Carpenters covering, inter alia,
‘‘All work assignments involved in the preparation, in-
stallation, finishing, repair and maintenance of tile,
marble, terrazzo and dimensional stone.’’
Bricklayers’ field staff representative, Smith, testi-
fied that in 1980 Campbell signed a contract with
Bricklayers that renewed from year to year. Elmer
Campbell testified that Campbell presently does not
have a contract with Bricklayers, but that he could not
recall if he had ever executed a contract with Brick-
layers. At the hearing, Bricklayers did not offer any
exhibit purporting to be a collective-bargaining agree-
ment between Campbell and Bricklayers.5
We find that, as Campbell has a collective-bargain-
ing agreement with Carpenters covering the disputed
work, and as the preponderance of evidence does not
establish the existence of a collective-bargaining agree-
ment between Campbell and Bricklayers covering the
disputed work, the factor of collective-bargaining
agreements favors an award to employees represented
by Carpenters.6
73CARPENTERS LOCAL 1207 (CARLTON, INC.)
1 Although the record indicates that Bricklayers’ representative,
Smith, told Campbell President Elmer Campbell that the Mount
Olive tilesetting work belonged to Bricklayers-represented employ-
ees, there is no evidence that Smith was seeking anything other than
the enforcement of Bricklayers’ collective-bargaining agreement with
Carlton.
2. Employer preference and past practice
Elmer Campbell testified that he prefers to have the
disputed work assigned to employees represented by
Carpenters, and that the Carpenters-represented em-
ployees currently performing Campbell’s tilesetting
work at Mount Olive have been performing tilesetting
work for Campbell for the past 6 to 10 years. Camp-
bell also testified that he has used employees rep-
resented by Bricklayers in the past, but he could not
remember the specific years in which he employed
Bricklayers-represented employees.
Bricklayers’ field representative, Smith, testified
that, at various times between 1981 and 1988, Brick-
layers-represented employees performed tilesetting
work for Campbell. Smith does not claim that Camp-
bell has used Bricklayers-represented employees on a
regular basis to perform Campbell’s tilesetting work.
We find that the factor of employer preference and
past practice favors an award to employees represented
by Carpenters.
3. Area and industry practice
Carpenters’ business agent, Robert Sutphin, testified
that many area contractors have used Carpenters-rep-
resented employees to perform their tilesetting work.
Bricklayers’ representative, Smith, testified that various
area contractors have performed tilesetting work using
employees represented by Bricklayers, but that not all
of the area tilesetting work is performed by Brick-
layers-represented employees. The evidence indicates
that the practice is mixed among Carpenters-rep-
resented employees, Bricklayers-represented employ-
ees, and employees not represented by either Car-
penters or Bricklayers. We find that the factor of area
and industry practice does not favor an award either to
employees represented by Carpenters or to employees
represented by Bricklayers.
4. Relative skills
Elmer Campbell testified that the Carpenters-rep-
resented employees who are currently performing the
Mount Olive tilesetting work are skilled employees
and are doing quality work. Bricklayers’ representa-
tive, Smith, testified that employees represented by
Bricklayers have been performing tilesetting work for
over 43 years. We find that the evidence is inconclu-
sive and therefore the factor of relative skills does not
favor an award either to employees represented by
Carpenters or to employees represented by Bricklayers.
5. Economy and efficiency of operations
In its brief, Campbell asserts that assignment of the
disputed work to employees represented by Bricklayers
would require Campbell to use two sets of employees,
i.e., Bricklayers-represented employees to set the tile
and Carpenters-represented employees to finish the tile,
rather than using one set of employees for both duties.
The record does not, however, support this assertion.
We find that the evidence is inconclusive and therefore
the factor of economy and efficiency of operations
does not favor an award either to employees rep-
resented by Carpenters or to employees represented by
Bricklayers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Carpenters are en-
titled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargain-
ing agreements and employer preference and past prac-
tice.
In making this determination, we are awarding the
work to employees represented by Carpenters, not to
that Union or its members. The determination is lim-
ited to the controversy that gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Campbell Tile Company represented
by United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1207, AFL–CIO are enti-
tled to perform tilesetting work at the Mount Olive
Correction Facility in Fayette County, West Virginia.
CHAIRMAN STEPHENS, dissenting.
In this case Bricklayers at no time engaged in any
coercion or threats of coercion. Bricklayers has
claimed the work in dispute on the grounds that
Carlton’s subcontracting the work to Campbell violates
the collective-bargaining agreement between Carlton
and Bricklayers.1 Bricklayers has submitted a copy of
that agreement. On the basis of that evidence and
Bricklayers’ contentions, I find that it has at least an
arguably meritorious claim that Carlton violated the
signatory subcontracting provision of that agreement
when it subcontracted the work to Campbell. For the
reasons stated in my dissenting opinion in Laborers
Local 731 (Slattery Associates), 298 NLRB 787, 790–
792 (1990), I would find that there are no competing
claims for the work, and I would quash the 10(k) no-
tice.