Carpenters Local No. 480

National Labor Relations Board - Board Decisions

Jun 25, 1973

204 N.L.R.B. 444 (N.L.R.B. 1973)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local No. 480 , affiliated with United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Chevy Chase Project 9 and Sheet
Metal Workers Local 268, affiliated with Sheet Met-
al Workers International Association , AFL-CIO.
Case 14-CD-435
June 25, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Chevy Chase Project 9, herein called
Employer, alleging that Carpenters Local No. 480,
affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, herein called Carpen-
ters , has violated Section 8(b)(4)(D) of the Act. A
hearing was held before Hearing Officer John S. Ste-
vens on December 14, 1972. The Employer, Carpen-
ters , and Sheet Metal Workers, Local No. 268,
affiliated with Sheet Metal Workers International As-
sociation , herein called Sheet Metal Workers, ap-
peared at the hearing and were afforded full
opportunity to be heard , to examine and cross-exam-
ine witnesses , and to adduce evidence bearing on the
issues .' Thereafter, briefs were filed by the Employer
and the Carpenters which have been duly considered.
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-
' At the beginning of the hearing, counsel for the Sheet Metal Workers
made an oral motion to quash the notice of hearing based upon the asserted
position that the Sheet Metal Workers are employed by France Plumbing,
Heating and Air Conditioning Company, herein called France, and are not
employed by Chevy Chase Project 9, and therefore the Board would not have
jurisdiction to determine a work assignment as to France France was not
served the original charge , notice of heanng and order rescheduling hearing
However, on November 2, 1972, the charge , notice of hearing and order
rescheduling hearing were served on France by registered mail At the con-
clusion of the heanng counsel for the Sheet Metal Workers renewed his
motion to quash the notice of hearing, based upon his contention that Chevy
Chase Project 9 now having subcontracted the work to France , a decision by
the Board could cause cancellation of the contract Further, France is not
a party to this proceeding and since the party who now has the work is not
before the Board , the entire hearing was wasteful . We find no merit in this
contention . France was duly served in advance of the hearing with, and
acknowledged receipt of, a notice of hearing, and a copy of the charge, but
it neither appeared at the hearing nor filed a brief with the Board . We find
that where , as here , all parties to the dispute were served with notice of
hearing and afforded opportunity to participate and introduce evidence, the
purposes intended in the hearings under Section 10(k) are adequatedly
served . See Hoisting and Portable Engineers Local 450, District No. I of the
International Union of Operating Engineers (Filter Media Inc ),171 NLRB 827,
In. 1, Teamsters Local Union 5 (Hart-McCowan Foundation, Co, Inc), 147
NLRB 1216, 1219 Accordingly , we shall proceed to make a determination
on the basis of the evidence on the record before us
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following findings:
I THE BUSINESS OF THE EMPLOYER
We find that the Employer is a partnership in which
a major party is Chevy Chase Investments, a real
estate development company. Chevy Chase during
the past year purchased building materials, doors, and
lumber, valued in excess of $70,000 from a supplier in
Missouri, which materials were shipped to Chevy
Chase in the State of Illinois. Accordingly, we find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
11 THE LABOR ORGANIZATION INVOLVED
We find that the Carpenters and the Sheet Metal
Workers are labor organizations within the meaning
of Section 2(5) of the Act.
III THE DISPUTE
A. Background and Facts
In April 1972, work began on a project in O'Fallon,
Illinois, consisting of 13 four-family buildings. The
owner and developer of the complex and the Employ-
er in this case is the Chevy Chase Project 9, which is
a limited partnership formed specifically to develop
and construct multifamily housing under the Federal
Housing Authority's Plan 236. Chevy Chase Invest-
ments, a corporation, is the managing partner of
Chevy Chase Project 9. Mr. John Havelka, a general
partner in the partnership and president of Chevy
Chase Investments, filed the instant charge.
The "soffit system" which is the outside finish for
the roof overhang on a building is composed of an
overhang drip edge, a fascia cover, frieze runner strip,
and a soffit panel. The overhang drip edge is nailed
to the edge of the roof on the plywood sheeting, the
fascia is nailed to a board attached to the ends of the
roof rafters, the frieze starter strip, which is a metal
strip with a channel, is nailed against the wall of the
building, and the soffit panel is placed in the frieze
runner channel and then nailed to the outer edge of
the roof. The particular soffit system used here is
constructed of aluminum. However, this identical sof-
fit system can and has been constructed using wood,
plastic, plywood, dry wall, fibreboard, celotex, ma-
204 NLRB No. 62
CARPENTERS LOCAL NO. 480 445
sonite , gypsum board, or vinyl. Regardless of the ma-
terial utilized, the system performs the exact same
function, the only difference being the future mainte-
nance that will be required.
When the construction began in April 1972, the
Employer entered into various subcontract arrange-
ments , including a carpenter subcontract to Blazier
and another subcontract with France for heating, air-
conditioning, and guttering work. Robert Blazier, in
addition to being the carpenter subcontractor, was the
construction superintendent for the entire Chevy
Chase Project 9. John Havelka, the general partner,
stated that he was aware that Blazier had a collective-
bargaining agreement with the Carpenters and em-
ployed carpenters and that at the time he awarded
Blazier the contract he was aware of this and desired
to have the carpenters perform the work in dispute.
From the beginning of this project in April 1972 until
August 1972, the Carpenters were performing all of
the work in dispute.
In August 1972, the Sheet Metal Workers learned
Blazier was using carpenters to perform the disputed
work. The representatives of the Sheet Metal Workers
went to the worksite and spoke to Robert T. Blazier.
A demand was made of Blazier to reassign the disput-
ed work to the Sheet Metal Workers. The Sheet Metal
Workers representatives stated that they asked Blazier
if he would be bound by a National Joint Board deci-
sion if one could be obtained awarding the work to
the Sheet Metal Workers and he stated that he did
agree to be bound. Representatives of the Sheet Metal
Workers then went to John T. Havelka, president, and
also made a demand for reassignment of the work
upon him. They stated that they asked Havelka if he
would be bound by a National Joint Board decision
and they said he replied that he would be so bound.
Havelka specifically denied having agreed to be
bound by a National Joint Board decision.
About August 21, or 22, the Sheet Metal Workers
procured an assignment of the work from the Nation-
al Joint Board. They went to Blazier about August 24
and asked him to place the award in effect. Blazier
failed to do so. On August 28, the Sheet Metal Work-
ers commenced picketing Chevy Chase's project with
signs stating that the Carpenters were refusing to give
effect to a National Joint Board decision. All crafts on
the project except the carpenters ceased work. Later
that same day, Chevy Chase removed the disputed
work from the contract of Blazier and assigned it to
subcontractor France, whose employees are repre-
sented by the Sheet Metal Workers. The carpenters
then walked off the job and remained away for ap-
proximately 10 days. Carpenters admits that the work
stoppage was a result of their loss of the disputed
work.
B. The Work in Dispute
Before the shingles are applied to the roof, a metal
strip called a starter is nailed to the roof. Construction
of the roof other than the starter strip is admittedly
carpenter's work. Sheet Metal Workers claim the right
to place the starter strip. On the overhang of the roof,
the underside of the overhang is closed by means of
a soffit. At this project, the soffit is placed between
two metal channels. The work of applying the chan-
nels and the aluminum soffit is in dispute.
C. Contentions of the Parties
The Employer specifically denied having agreed to
be bound by a National Joint Board decision and
contends that the assignment of the work in dispute
to carpenters is more efficient , as it is a part of one
continuous operation , that carpenters possess the skill
necessary to do the work , and it is more economical
to have one craft perform all of the work.
The Carpenters position is the same as that of the
Employer , and it also contends that the parties are not
bound by the determination of the dispute by the
Joint Board because it is in noncompliance status with
the Joint Board.
The Sheet Metal Workers contends that the Joint
Board decision awarding the work to members of the
Sheet Metal Workers constituted settlement of the
dispute by an agreed -upon method , inasmuch as both
International Unions are bound by the Joint Board
procedures , France agreed to be bound and represen-
tatives of Chevy Chase and Blazier orally agreed to be
bound.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 vio-
lated and (2) the parties have not agreed upon a meth-
od for the voluntary adjustment of the dispute.
In this case , it is clear that the Sheet Metal Workers
made a demand on Blazier and also on Havelka, Pres-
ident of Chevy Chase Investments, Inc., to reassign
the disputed work to them . The Sheet Metal Workers
did picket and cause a work stoppage of all crafts on
the project , except the carpenters , at the Employer's
jobsite with the object of requiring the Employer to
assign all the disputed work to its members. Chevy
Chase removed the disputed work from the contract
of Blazier and assigned it to the subcontractor , France
Plumbing, whose employees are represented by the
Sheet Metal Workers. The carpenters then walked off
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job.
On the basis of the entire record, we find that there
is reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) has occurred and that the dispute is
properly before the Board for determination. Further,
we conclude that there exists no effective method for
the voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. The testimony of
the parties is conflicting as to whether an oral agree-
ment was reached, and a letter from the Sheet Metal
Workers to the Employer sent subsequent-to the time
of the alleged oral agreement failed to mention any
such agreement although the ostensible purpose of the
letter was to confirm it. Furthermore, the Sheet Metal
Workers could offer no reason for the omission of any
reference to the purported oral agreement other than
mention of it was deemed unnecessary. In such cir-
cumstances, we find the evidence insufficient to es-
tablish that the Employer is bound by the Joint Board
procedures. Cf. Sheet Metal Workers International As-
sociation, Local No. 553 (Ray Proof Corporation), 198
NLRB No. 36.
E. 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 factors.2 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors in-
volved in a particular case.'
The following factors are relevant in making the
determination of the dispute before us:
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified as collective-bargaining representa-
tive for a unit of the Employer's employees.
When the construction began in April 1972, Chevy
Chase Project 9 entered into various subcontract ar-
rangements, including a carpenter subcontract to Bla-
zier and another subcontract with France for heating,
air-conditioning, and guttering work. As noted, Rob-
ert Blazier, in addition to being the carpenter subcon-
tractor, was the construction superintendent for the
entire project for Chevy Chase Project 9. All of the
work in dispute was included in Blazier's carpenter
2 N L R B v Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U S 573 (1961)
3 International Association of Machinists, Lodge No 1743, AFL-CIO (J A
Jones Construction Company), 135 NLRB 1402
subcontract. None of the work in dispute was includ-
ed in the subcontract with France. Chevy Chase, for
reasons unrelated to the instant dispute or the ability
of the carpenters, took over the work heretofore per-
formed by Blazier and decided to employ carpenters
directly. It has signed a collective-bargaining agree-
ment with the Carpenters Union. The contract with
the Carpenters provides that the carpenters are to
perform " . . . milling, fashioning, joining, assem-
bling, erecting, fastening or dismantling of all materi-
als of wood, plaster, metal, fiber cork and
composition, and all substituting materials," together
with "the handling, erecting, installing and disman-
tling of . . . all materials" used by members of the
Carpenters. Chevy Chase has no collective-bargaining
relationship of any sort with the Sheet Metal Workers.
We therefore find that the contract with the Carpen-
ters favors award of the work to the Employer's em-
ployees represented by the Carpenters.
2. Employer and area practice
Chevy Chase Investments has been the owner and
developer of eight apartment projects prior to the in-
stant Chevy Chase Project 9. The earlier eight projects
are located in St. Louis County, Missouri, and in
Madison and Macoupin Counties, Illinois, all within
a 40-to 70-mile radius of the present job. Each of the
projects had the same type of soffit system installation
as the present job and on all, the work was performed
by Carpenters. John Havelka stated that in his 25
years' experience in the construction industry, from
his observation, the performance of the work in dis-
pute here has always been performed by carpenters
and never by sheet metal workers. In addition, the
record discloses that numerous jobs in the area, exact-
ly like the instant ones at Chevy Chase Project, utilize
carpenters to perform this work. The Employer and
area practice, therefore, favor the award of the disput-
ed work to the Employer's employees represented by
the Carpenters.
3. Skills, efficiency, and economy of operation
It appears from the record that either craft is capa-
ble of performing the work in dispute and each has
available to it the tools necessary to do the job, so that
the factor of skill is not useful in making our determi-
nation herein. Regarding efficiency, the record shows
that the sheet metal workers took 50 percent longer to
perform the disputed work than did the carpenters.
Havelka stated that there is time lost because the sheet
metal workers must come from another part of the
project to perform the disputed work and the carpen-
ters must leave to go to another part of the project.
CARPENTERS LOCAL NO. 480 447
Thus, the use of carpenters would be more efficient
and more economical. We therefore find that the effi-
ciency and economy factors favor an award to the
Employer's employees represented by the Carpenters.
CONCLUSIONS
Having considered all pertinent factors present
herein, we conclude that Employer's employees who
are represented by the Carpenters are entitled to per-
form the work in dispute. This assignment is consis-
tent with the initial assignment, the contracts, the
Employer and area practice, and the efficiency and
economy of the operation. In making this determina-
tion, we are awarding the work in question to employ-
ees employed by the Employer who are represented
by the Carpenters, but not to that Union or its mem-
bers.
SCOPE OF THE DETERMINATION
The work which gave rise to the instant dispute is
nearing completion and an additional Chevy Chase
Project (No. 10) is currently under construction with
the identical type of soffit systems and Chevy Chase
contemplates future projects where this identical work
will be involved. We find persuasive the Carpenters
suggestion that our award in this case should be appli-
cable to all similar future disputes which may arise
with respect to Chevy Chase Projects in the same area.
The record does not disclose the location of the other
Chevy Chase Project (No. 10), nor does it disclose the
location of future projects which the Employer has
stated on the record it intends to develop. We shall,
however, make our award in this case applicable to
the area covered by the jurisdiction of the collective-
bargaining agreement between the Employer and the
Tri-Counties District Council and Affiliated Coun-
ties.4 This award will, of course, apply to such future
Hearing Officer's Exh. I
disputes only if no substantial changes occur in the
factors, discussed above, which have led us to our
conclusion that the disputed work should be per-
formed by carpenters employed by the Employer and
represented by the Carpenters.
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 case,
the National Labor Relations Board hereby makes
the following Determination of Dispute:
1. Assuming the substantial continuation of the
factors discussed in the above decision, carpenters
employed by the Employer rather than sheet metal
workers represented by Sheet Metal Workers Local
268, affiliated with Sheet Metal Workers Internation-
al Association, AFL-CIO, are entitled to perform the
work of handling and installing of frieze starter strips,
aluminum soffit, fascia, and metal roof start flashing
and other metal flashings at the Chevy Chase Housing
Projects in the area covered by the jurisdiction of the
collective-bargaining agreement between the Employ-
er and the Tri-Counties District Council and Affiliat-
ed Counties.
2. Sheet Metal Workers Local No. 268, affiliated
with Sheet Metal Workers International Association,
AFL-CIO, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Chevy Chase Project 9, O'Fallon, Illinois, to assign
such work to individuals represented by the aforesaid
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers
Local No. 268, affiliated with Sheet Metal Workers
International Association, AFL-CIO, shall notify the
Regional Director for Region 14, in writing, whether
or not it will refrain from forcing or requiring Chevy
Chase Project 9, by means proscribed by Section
8(b)(4)(D), to assign the work in dispute in a manner
inconsistent with the above determination.