Carpenters Local # 1752

National Labor Relations Board - Board Decisions

Mar 22, 1976

223 N.L.R.B. 168 (N.L.R.B. 1976)

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local # 1752; and Los Angeles County
District Council of Carpenters, affiliated with Unit-
ed Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO' and Pacific Coast Fireproofing,
Inc. and Lathers Local #42, Wood, Wire and
Metal Lathers International Union , AFL-CIO .2
Case 21-CD-392
March 22, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing charges filed by Pacific Coast Fireproofing, Inc.
(herein called the Employer), on April 1, 1975, and
amended on April 22, 1975, alleging that Local 1752
and the District Council had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activities with an object of forcing the Em-
ployer to assign certain work to employees repre-
sented by Local 1752, rather than to employees
represented by Local 42.
Pursuant to notice , a hearing was held before
Hearing Officer Joseph M. Connors on June 20,'
July 24 and 25, and September 9 and 10 , 1975. 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. Thereafter , the Employer, Local 1752
and the District Council , and Local 42 filed briefs.
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 Board has reviewed the rulings of the Hearing
Officers made at the hearing and finds that they are
free from prejudicial error . The rulings are hereby
affirmed . The Board has considered the briefs and
the entire record in this case and hereby makes the
following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer is a Cali-
1 Herein referred to as Local 1752 and the District Council , respectively.
The names of both Local 1752 and the District Council were amended at
the hearing to indicate their affiliation with the United Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
2 Herein referred to as Local 42.
2 The Hearing Officer present at the hearing in the above-entitled matter
on June 20, 1975, was Robert Bernier.
fornia corporation engaged in the business of install-
ing metal framing, lath, and drywall assemblies. Dur-
ing the past 12-month period, the Employer per-
formed services valued in excess of $50,000 for firms
located outside the State of California. The parties
also stipulated that Pacific Coast Fireproofing, Inc.,
is an employer within the meaning of Section 2(2) of
the Act. Accordingly, we find, as the parties have
stipulated, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
1752, the District Council, and Local 42 are labor
organizations within the meaning of Section 2(5) of
the Act.
111. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the "installation of
furring bars , drywall channel for screw attachments,
and drywall below the 1 and 1-1/2-inch carrying
channel" at the Pacific State Hospital project in Po-
mona, California 4
B. Background and Facts of the Dispute
On November 6, 1974, the Employer entered into
a subcontractual agreement with Mallcraft, Inc.,
whereby it was obligated to install an iron suspension
ceiling system at the Pacific State Hospital project in
Pomona, California.
The iron suspension ceiling work called for the
erection of scaffolding, the installation of hanger
pins, the dropping of hanger wires, the securing of I
and 1-1/2-inch carrying channels, the cross-fusion of
the carrying channels with hat or furring channels
with 24 inches on center, the securing of drywall to
the hat or furring channel, and some taping of dry-
wall to maintain 1-hour firerated integrity. The dry-
wall was to be attached to the furring channel by
1-inch drywall screws, with seam taping to meet
manufacturers' fire test requirements.
Work on the project commenced in December
1974. The Employer assigned the above-described
work to employees represented by Local 42.5 In early
All of the Unions involved herein refused to stipulate to the scope of the
work in dispute as set forth in the notice of hearing . All parties stipulated,
however, that the work described above was the work claimed by Local
1752.
S The Employer has a collective-bargaining agreement with Local 42 by
223 NLRB No. 7
CARPENTERS LOCAL # 1752 169
February 1975, a Mr. Buchanan, the business agent
for Carpenters Local Union No. 1506, 6 visited the
jobsite and discovered that the portion of the ceiling
work that involved the installation of the furring
bars, the drywall channels for screw attachments,
and the application of a drywall below the 1-1/2-inch
carrying channel was being installed by employee
members of Local 42. After determining from the
status book of the Carpenters Trust Fund that the
Employer was a signatory contractor with Local
1506,7 Buchanan spoke to Local 42's business agent
with regard to the assignment of the work in dispute
and referred him to the decision by the National
Hearings Panel on "Ceiling Systems," 8 which award-
ed the type of work claimed herein by Local 1752 to
carpenters rather than to lathers. In response to Bu-
chanan, Local 42's business agent said that he would
not honor the National Hearings Panel's award un-
less he received a directive from his international
union to do so. Buchanan then spoke to a representa-
tive of the Employer and with the general
contractor's superintendent about the assignment,
and objected to the use of lathers to perform carpen-
ters' work. During these conversations, Buchanan
did not make any threats but simply referred to the
determination with regard to "Ceiling Systems"
made by the National Hearings Panel.
On February 14, 1975, William Sidell , general
president of the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO,9 wrote Kenneth
Edwards, general president of the Wood, Wire and
Metal Lathers International Union, AFL-CIO,10 and
requested that he sign a stipulation, to be forwarded
to the Impartial Jurisdictional Disputes Board, indi-
cating the agreement of both international unions
that the work in dispute properly belongs to employ-
ee-members of Carpenters Local 1752.11 On Febru-
ary 14, 1975, that stipulation was signed by John
Divera, a representative of the Lathers, and by Rich-
ard Cox, a representative of the Carpenters. On
March 3, 1975, Fred J. Driscoll, Jr., chairman of the
Impartial Jurisdictional Disputes Board, issued a di-
rective to Mallcraft and to the Employer, which indi-
cated that the work in dispute had been assigned to
the employee-members of Local 1752 in accordance
with the stipulation of the two international unions,
and that Mallcraft should proceed with the work on
that basis.
On March 28, 1975, the Los Angeles District
Council of Carpenters advised Mallcraft, by tele-
gram , that unless Mallcraft complied with the March
3, 1975, directive of the Impartial Jurisdictional Dis-
putes Board for the Construction Industry by March
31, 1975, the Carpenters, under the terms of the mas-
ter labor agreement, would take economic action
against Mallcraft.
On or about March 29, 1975, Pacific Coast Fire-
proofing, Inc., received, from Mallcraft, a letter dat-
ed March 28, 1975, with a copy of the March 28,
1975, telegram from the Carpenters to Mallcraft at-
tached, advising Pacific Coast Fireproofing, Inc., to
discontinue any further installation of furring bars
under threat of cancellation of the subcontract.
C. Contentions of the Parties
Both the Employer and Local 42 contend that
there is reasonable cause to believe that Local 1752
violated Section 8(b)(4)(D) of the Act, and that there
is no voluntary method of adjustment to which all
the parties have agreed to be bound. They urge the
Board to award the entire installation of the iron sus-
pension ceiling system to members of Lathers Local
42. and maintain that such an assignment is consis-
tent with the area practice, the Employer's own prac-
tice and preference, and the terms of the collective-
bargaining agreements. In addition, they contend
that the factors of skill, efficiency, and economy of
operations support such an assignment.
Local 1752 and the District Council contend that
there is no reasonable cause to believe that they vio-
lated Section 8(b)(4)(D) of the Act. In addition, they
argue that the notice of hearing should be quashed
since all parties have agreed to be bound by a deter-.
mination of the Impartial Jurisdictional Disputes
Board which has already made a determination, on
March 3, 1975, that the work in dispute properly be-
longs to employees represented by Local 1752. Alter-
natively, Local 1752 and the District Council con-
tend, that if the notice of hearing is not quashed, the
Board should determine that the work in dispute
properly belongs to employees represented by Local
1752 based on area practice.
virtue of its membership in the Southern California Lathing and Plastering
Association.
6 Herein referred to as Local 1506. The jurisdiction of this local is county-
wide and includes the area serviced by Local 1752.
7 The Employer signed a "Drywall Memorandum Agreement " with Local
1506 on January 24, 1968 . This agreement has never been canceled.
8 This decision issued on August 24, 1966.
9 Herein referred to as the Carpenters.
10 Herein referred to as the Lathers.
11 The stipulation was in accordance with the 1966 decision referred to
above by the National Hearings Panel.
D. Applicability of the Statute
Before the Board may proceed to a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that (1) there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
(2) the parties have not agreed upon a method for the
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voluntary adjustment of the dispute.
As to ( 1), the parties stipulated , as noted herein-
above, that on March 28, 1975, the District Council
advised Mallcraft, by telegram , that unless Mallcraft
complied with the March 3, 1975, directive of the
Impartial Jurisdictional Disputes Board by March
31, 1975, the Carpenters , under the terms of the mas-
ter agreement, would take economic action against
Mallcraft. After receiving this telegram , Mallcraft, as
detailed above, advised the Employer to discontinue
any futher installation of furring bars under threat of
cancellation of the subcontract. Accordingly, we find
that reasonable cause exists to believe that the Re-
spondents' conduct violated Section 8(bx4)(D) of the
Act.
As to (2), the Respondents argue that an agreed-
upon method exists inasmuch as all parties to the
instant dispute are required to submit their jurisdic-
tional disputes to the Impartial Jurisdictional Dis-
putes Board for determination. While the Carpenters
(with which Local 1752 and the District Council are
affiliated) and the Lathers (with which Local 42 is
affiliated) are members of the Building and Con-
struction Trades Department, AFL-CIO, and as
such are parties to the plan 12 and subject to the juris-
diction of the Impartial Jurisdictional Disputes
Board created pursuant to the plan , there is a serious
question here as to whether it can be said that the
Employer has agreed to be bound by the procedures
established by the Impartial Jurisdictional Disputes
Board. The Respondents argue that the Employer is
so bound by virtue of its being a signatory to a Dry-
wall Memorandum Agreement with Local 1506 and
to an article of agreement with the Building and
Construction Trades Council of Los Angeles.
The Drywall Memorandum Agreement, which was
signed by the Employer on January 24, 1968, pro-
vides as follows:
... the undersigned agrees to comply with the
wages, hours, working conditions , and rules as
set forth in this Agreement , dated August 1st,
1965 to July 31st, 1968, which is incorporated
herein by reference and made a part hereof, and
any modifications, changes, extensions or re-
newals of or to said Master Agreement which
12 The plan refers to the one adopted by the Building and Construction
Trades Department for the settlement of jurisdictional disputes . Art. X of
the constitution of the Building and Construction Trades Department pro-
vides : "All jurisdictional disputes between or among affiliated National and
International Unions and their affiliated Local Unions and employers shall
be settled and adjusted according to the present plan established by the
Building and Construction Trades Department, or any other plan or meth-
od of procedure adopted in the future by the Department , for the settlement
of jurisdictional disputes . Said present plan or any other plan adopted in the
future shall be recognized as final and binding upon the Department and
upon all affiliated National or International Unions and their affiliated
Local Unions."
may be negotiated by the parties thereto.13
The latest Drywall Master Agreement between the
California State Council of Carpenters and the Cali-
fornia Drywall Contractors Association provides that
jurisdictional disputes are to be governed as follows:
Section 2. Nothing contained in this Agreement
or any part thereof, or in this Article VI or any
part thereof, shall affect or apply to the Unions
signatory hereto or on whose behalf this Agree-
ment is executed, or any of them in any action
they may take against any Contractor who has
failed, neglected or refused to comply with or
execute any settlement or decision reached
through grievance or arbitration under the terms
of this Agreement or the jurisdictional determi-
nation of the Building and Construction Trades
Department of the AFL-CIO. Any subcontrac-
tor or a Contractor shall be subject to the provi-
sions of this Article.
The agreement with the Building and Construction
Trades Council of Los Angeles was signed by the
Employer on January 26, 1968.14 Article VIII of that
agreement provides as follows:
In the event a jurisdictional dispute arises
which is not resolved by the Unions themselves
locally, the matter shall be determined in the
manner and by the procedure established by the
National Joint Board for the Settlement of Juris-
dictional Disputes, or in the event the National
Joint Board for the Settlement of Jurisdictional
Disputes is abolished, the Procedure established
by the Building and Construction Trades De-
partment shall prevail.
The Impartial Jurisdictional Disputes Board .came
into existence on June 1, 1973. The Respondents ar-
gue that we should construe the language which ap-
pears in section 2 of the Drywall Memorandum
Agreement and in article VIII of the article of agree-
ment with the Building and Construction Trades
Council of Los Angeles to refer to the Impartial Ju-
risdictional Disputes Board and its successors and,
thus, to bind the Employer to that board.15 Under the
peculiar circumstances of this case, we will not apply
13 As noted above , neither party has given written notice to the other of a
desire to change or cancel this agreement in accordance with its provisions.
u This agreement was signed and submitted to the Building and Con-
struction Trades Council of Los Angeles by Local 1506. The copy of the
agreement made available to the Board in the form of an exhibit does not
have the signatures of the Building and Construction Trades Council on it.
The record does not indicate whether the agreement was ever in fact signed
by that Council.
15 See Construction, Production & Maintenance Laborers' Union, Local No.
383 of the Laborers International Union of North America, AFL-CIO (Indus-
trial Turf, Inc.), 218 NLRB 424 (1975); and Sheet Metal Workers Local
Union No. 359, affiliated with Sheet Metal Workers' International Association,
AFL-CIO (ELT Piping), 217 NLRB No. 164 (1975).
CARPENTERS LOCAL # 1752 171
such a rationale since , in our view, the facts in this
case do not justify our reliance on the above-cited
agreements in making a determination as to whether
the Employer is bound to the procedures established
by the Impartial Jurisdictional Disputes Board.16
In the instant case, unlike in the cases cited in foot-
note 15, both contracts were executed in 1968, until
very recently for a number of years the Employer did
not employ any carpenters, and there is no evidence
that any of their provisions have been enforced since
the period immediately following the initial signing.
Under these circumstances, where so much time has
elapsed and the agreements have apparently not
been in use, we find there is insufficient evidence to
establish that the specific provisions relied upon by
Local 1752 and the District Council herein are still
viable and thus binding on the Employer. According-
ly, we find that all parties are not bound by an
agreed-upon method for the voluntary settlement of
this dispute.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors. As the Board has stated, the determination in a
jurisdictional dispute case is an act of judgment
based on commonsense and experience in weighing
the factors." The following factors are relevant in
making a determination of the dispute before us:
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-bar-
gaining representative for a unit of the Employer's
employees so that the claims of the Carpenters and
the Lathers are unaffected by this factor.
Since the latter part of 1967, the Employer, by vir-
tue of its membership in the Lathing and Metal Fur-
ring Contractors Association of California, Inc., has
been a party to a collective-bargaining agreement
with Lathers Local 42. It was stipulated at the hear-
ing that since at least 1959 to the present the work
16 Based on the dissenting opinion in ELT Piping and on his separate
opinion in Industrial Turf (concurring in part and dissenting in part), Mem-
ber Jenkins would not find that the Employer herein had agreed to be
bound to the Impartial Jurisdictional Disputes Board even if the facts indi-
cated that all of the provisions of both agreements referred to above were
being enforced.
17 N.L.R. B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573 ( 1961); International Association of Machinists,
Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB
1402 (1962).
jurisdiction provisions of the Lathers collective-bar-
gaining agreement has encompassed iron suspension
ceiling systems. It was also conceded by the Employ-
er that the Carpenters collective-bargaining agree-
ments have also included iron suspension ceiling sys-
tems in their work jurisdictional provisions since
1955. For the reasons discussed above, however, we
find that there is insufficient evidence to establish
that the provisions of the contract between the Em-
ployer and Local 1506 are presently binding on the
Employer. Accordingly, we find that the collective-
bargaining agreements involved favor the assignment
of the work in dispute to employees represented by
the Lathers.
2. The Employer's practice and preference
Sawyer, the Employer's president, testified that his
company has installed numerous iron suspension
ceilings since 1967, and that, with the exception of
one carpenter, has always employed lathers to do this
kind of work. With regard to the specific job in ques-
tion, Sawyer testified that he assigned the lathers to
perform the entire installation of the iron suspension
ceiling system. Sawyer further testified, without con-
tradiction, that historically the Employer constructed
the entire ceiling suspension system at least 80 per-
cent of the time. Of the remaining 20 percent, the
Employer did all of. the work involved except for the
application of the drywall 10 percent of the time, and
all of the installation process except for installing the
furring channels and applying the drywall the re-
maining 10 percent of the time. Furthermore, Sawyer
testified that lathers, in his view, were more skilled at
performing the disputed work than carpenters. Based
on this factor as well as others, the Employer ex-
pressed a clear preference to employ lathers to do the
work. Accordingly, this factor favors an award of the
work in dispute to employees represented by the
Lathers.
3. Area practice
It appears to be the area practice for each compa-
ny engaged.in the installation of iron suspension ceil-
ing systems to award the work in its entirety to either
the Lathers or the Carpenters. The basis for not seg-
menting the work between both the Lathers and Car-
penters is that it is less efficient for more than one
craft to perform the work on any given project.
The testimony adduced at the hearing reveals that
the area practice is mixed. For example, Thomas
Slim, secretary of Specialty Contractors, testified that
for the past 11 years, his company has done, among
other work, numerous jobs involving the installation
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of carrying channels, furring bars , and drywall, and
has always used carpenters for this work . Slim added,
however, that a separate company , L.A. Lathers,
with the same ownership as Specialty Contractors,
does the same work utilizing lathers to accommodate
those subcontractors who have agreements with the
Lathers . Another witness , Bob Reeder , president of
Robert D. Reeder Lathing Company and Diversified
Partition Company, testified that he performed the
installation of suspension ceiling systems with both
of those companies . Reeder testified , without contra-
diction , that Reeder Lathing performed all of its
work utilizing lathers exclusively . On the other hand,
Diversified used carpenters only to perform the same
work . In response to questioning as to why he operat-
ed with two companies , Reeder testified that one of
the purposes was to have one company operate un-
der a contract with the Lathers and the other operate
under a contract with the Carpenters . Additional tes-
timony was presented by other witnesses at the hear-
ing in support of the claims made by both of the
unions for the assignment of the work in dispute to
their respective members . Inasmuch as the area prac-
tice is mixed , it favors neither party.
4. Skills
Sawyer testified that the Lathers trust fund, of
which the Employer is a contributing member, con-
ducts a training program for lathers in the installa-
tion of iron suspension ceilings . While the program
lasts for 2 years, Sawyer testified that it would take
only 6 months to train a lather to become proficient
in the installation of furring channels and the fin-
ished product . Sawyer added that, based on his per-
sonal experience in using lathers exclusively for this
kind of work and on his personal observation of car-
penters installing the furring channels and drywall,
lathers were skilled , proficient, and capable in this
kind of work , while carpenters were slower , were not
handy with nippers , a tool essential to this kind of
work , and were, thus, less efficient . Sawyer estimated
that carpenters were 50 to 60 percent as fast as the
lathers in the performance of this type of work. Other
testimony offered indicates that the Carpenters has
an equivalent apprenticeship program and that car-
penters are proficient and capable in performing this
type of work . Since it appears that both lathers and
carpenters possess sufficient skills to perform satis-
factorily the work in dispute , this factor does not fa-
vor either party.
5. Efficiency and economy of operations
The testimony adduced at the hearing indicates
that it is highly inefficient to use the two crafts in-
volved herein in the construction of an iron suspen-
sion ceiling system . When two different crafts are in-
volved in the installation of this system , problems
arise in the assembly , disassembly , and the moving of
scaffolding each and every time there is a crew
change . In addition , the use of two different crews
makes it more difficult to level a ceiling . There was
also testimony to the effect that the use of more than
one crew presented scheduling problems with other
trades , such as with the electricians . Based on the
above record evidence, we conclude that this factor
favors an award of the disputed work to employees
represented by the Lathers.
6. The Impartial Jurisdictional Disputes Board
award
Although we do not consider the award by the Im-
partial Jurisdictional Disputes Board to the Carpen-
ters binding on the Employer, we do consider it as a
factor in determining the proper assignment of the
work in dispute. However, in view of all the circum-
stances , we are of the opinion that the award should
not be given controlling weight herein.
Conclusion
Upon the record as a whole, and after full consid-
eration of all the relevant factors involved, we con-
clude that the Employer's employees who are repre-
sented by the Lathers are entitled to the work in
dispute . In reaching this conclusion , we have particu-
larly relied on the Employer's assignment of the work
to its employees who are represented for collective-
bargaining purposes by the Lathers; the fact that the
assignment is consistent with the Employer 's practice
and with its collective-bargaining agreement with the
Lathers; and the evidence which indicates that such
an assignment would result in more efficient and
economical operations . We shall, therefore, de-
termine the dispute before us by awarding the work
involved herein to those employees represented by
the Lathers, but not to that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of Pacific Coast Fireproofing, Inc.,
represented by Lathers Local #42, Wood, Wire and
Metal Lathers International Union, AFL-CIO, are
CARPENTERS LOCAL # 1752
entitled to perform the work of installing the furring
bars, drywall channel for screw attachments, and
drywall below the 1 - and 1-1/2-inch carrying chan-
nels at Pacific State Hospital project in Pomona, Cal-
ifornia.
2. Carpenters Local # 1752, and Los Angeles
County District Council of Carpenters , affiliated
with United Brotherhood of Carpenters and Joiners
of America , AFL-CIO , are not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require the assignment of the above work to its
members or to employees it represents.
173
3. Within 10 days from the date of this Decision
and Determination of Dispute , Carpenters Local
#1751, and Los Angeles County District Council of
Carpenters , affiliated with United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, shall
notify the Regional Director for Region 21, in writ-
ing, whether they will refrain from forcing or requir-
ing, by means proscribed by Section 8(b)(4)(D) of the
Act, the assignment of the work in dispute to em-
ployees represented by Carpenters Local #1752,
rather than to employees represented by Lathers Lo-
cal #42 , Wood, Wire and Metal Lathers Internation-
al Union , AFL-CIO.