Carpenters, Local Union 213

National Labor Relations Board - Board Decisions

Mar 29, 1973

202 N.L.R.B. 776 (N.L.R.B. 1973)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local Union No . 213 and Carpenters
District Council of Houston and Vicinity and
Brede, Inc. of Houston and Sign & Pictorial
Painters Local Union No. 550. Case 23-CD-281
March 29, 1973
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Brede, Inc. of Houston,
hereinafter called the Employer, alleging that Car-
penters Local Union No. 213 and Carpenters District
Council of Houston and Vicinity, hereinafter called
the Carpenters, violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing or requiring the Employer to assign
certain work to employees represented by the
Carpenters rather than to employees represented by
Sign & Pictorial Painters Local Union No. 550,
hereinafter called the Painters.
A hearing was held before Hearing Officer Michael
Dunn on February 23, March 13, 14, and 15, 1972.
All parties appeared at the hearing and were given
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
upon the issues. The Carpenters and the Painters
filed briefs.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and the record shows, that
the Employer is a Texas corporation engaged as a
contractor in the design, construction, installation,
and dismantling of prefabricated displays and
exhibit booths in convention and exhibit halls in
Houston, Texas, and vicinity, and that during the
past 12 months, a representative period, the Employ-
er purchased goods and materials from points
outside the State of Texas valued in excess of $50,000
and transported them directly into that State. We
find, therefore, that the Employer is engaged in
commerce 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 the
Carpenters and the Laborers are labor organizations
within the meaning of the Act.
III. THE DISPUTE
A. Background
At issue is the question whether convention display
booth erection and dismantling work in Houston,
Texas, should be awarded to employees represented
by the Painters or to carpenters represented by the
Carpenters.
The Employer is a display company operating
under contract to various decorating companies for
the design, fabrication, storing, erecting, and disman-
tling of display exhibits for conventions. On Novem-
ber 5, 1971, the Employer was scheduled to erect two
exhibits for GRX Incorporated, a decorating compa-
ny, at the Albert Thomas Convention Hall in
Houston. The Employer assigned three of its display-
shop employees to perform the work. The display-
shop employees were all represented by the Painters
and the Employer had no employees represented by
the Carpenters in its employ. The three display-shop
employees arrived at the jobsite at 10 a.m. At
approximately 1 p.m., John Stewart, a Carpenters
steward, approached the employees and stated that
they were not supposed to be doing that work
without having some carpenters with them and were
taking work away from the Carpenters. The carpen-
ter steward blew the whistle, and the carpenters who
were working elsewhere in the hall ceased working.
Jack Fountain, the executive secretary of the Carpen-
ters District Council, arrived on the scene and stated
to the carpenters in the presence of the Employer's
employees: "If you guys are going to let them take
the work away from you, you all just go ahead and
do what you want, push over crates on them or push
over exhibits." Thereupon, several carpenters sat on
the work to be performed by the Employer's
employees. When Joe Ford, the Employer's general
manager, arrived at the scene, he discussed the
dispute with Fountain, who permitted the work to
proceed only with a composite crew to be comprised
of carpenters and the display-shop employees origi-
nally assigned by the Employer.
B. Contentions of the Parties
The Carpenters contends that there is insufficient
evidence to show any violation of Section 8(b)(4)(D)
and that the record presents only a "vague shadow"
of a possible misunderstanding about the assignment
of work on the job on that day. In this regard, the
Carpenters further argues that the actions taken in
furtherance of the work demand were discussed only
among the carpenters and were not directed to the
Employer's employees. The Carpenters also moves to
dismiss the Notice of Hearing, pursuant to the
provisions of Section 102.93, on the ground that a
202 NLRB No. 96
CARPENTERS , LOCAL UNION 213
tripartite agreement, considered below, executed by
the Employer, the Carpenters, and the Painters and
in existence at the time of the work stoppage,
provided an agreed-upon method of adjusting the
dispute, within the meaning of that section. The
Carpenters further contends that its current contract
with the Employer, which accords display-booth
erection and dismantling work to carpenters, thereby
justified an award of the work in dispute to the
members of the Carpenters. The Painters denies all
of these contentions and contends, to the contrary,
that the work in dispute should be awarded to the
Employer's display-shop employees, represented by
the Painters in accord with the Painters current
contract with the Employer, which antedates the
Carpenters contract. The Employer takes no position
as to the merits of the award.
C. Applicability of the Statute
The charge alleges violations of Section 8(b)(4)(D)
of the Act, and, contrary to the contentions of the
Carpenters, the record in our view furnishes reasona-
ble cause to believe that the Carpenters has re-
strained and coerced the Employer for the purpose of
forcing the assignment of the disputed work to its
members.
We shall turn now to the Carpenters contention
that the Notice of Hearing should be quashed.
Section 102.93 provides as follows:
If, either before or after service of the notice of
hearing, the parties submit to the regional director
satisfactory evidence that they have adjusted the
dispute, the regional director shall dismiss the
charge and shall withdraw the notice of hearing if
notice had issued. If, either before or after issuance
of notice of hearing the parties submit to the
regional director satisfactory evidence that they have
agreed upon methods for the voluntary adjustment of
the dispute, the regional director shall defer action
upon the charge and shall withdraw the notice of
hearing if notice has issued. If it appears to the
regional director that the dispute has not been
adjusted in accordance with such agreed-upon
methods and that an unfair labor practice within
the meaning of Section 8(b)(4)(D) of the act is
occurring or has occurred, he may issue a
complaint under Section 102.15, and the proce-
dure prescribed in Sections 102.9 to 102.51,
inclusive, shall, insofar as applicable, govern; and
Section 102.90 to 102.92, inclusive, are inapplica-
ble. [Emphasis supplied.]
' N L R B v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U S 573
777
Article IV, sections A and B of the tripartite
agreement, entitled "Grievance Procedure and Arbi-
tration," read as follows:
All disputes that may arise on any convention
job site covered by this Agreement, shall be
handled in the following manner without permit-
ting the grievance to interfere in any way with the
progress and prosecution of the work.
The Employer and the Union will meet, if
necessary, at reasonable times for the purposes of
handling grievances of the Employees covered by
this Agreement. Only controversies between an
employee or employees covered by this Agreement
and the Employer involving interpretation or viola-
tion of any section of this Agreement shall be
considered a grievance subject to arbitration. Such
arbitral matters shall be processed through the
grievance procedure to arbitration without resort
to a strike or a walk out. [Emphasis supplied.]
Article IV, section B, specifically applies only to
disputes between the Employer and employees
covered by the agreement, and by the same token
excludes, as employees not covered by the
agreement, the workers represented by the Car-
penters who barred the employees of the Employ-
er from performing the work to which they were
assigned.
It is clear from the foregoing and the entire record
evidence, and we find, that at all times material
herein there did not exist any agreed-upon or
approved method for the voluntary adjustment of the
dispute to which all parties to the dispute were
bound. Clearly, by its own terms, the tripartite
agreement cannot serve as an agreed-upon method
for the voluntary adjustment of the instant dispute.
Accordingly, we find that the matter is properly
before the Board for determination.
D. 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 and balancing all relevant
factors.'
1. Company practice
Since its certification by the Board in 1956, the
Painters has continuously represented the Employ-
er's shop decorating employees. The current contract
between the Painters and the Employer covers the
work here in dispute. Prior to 1969, the convention
industry in Houston was relatively small, and as a
result, a significant portion, if not all of the exhibit
erection and dismantling work was performed by the
relatively small complements of employees of the
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several display companies in Houston, including the
Employer, whose shop complement has numbered in
the neighborhood of six to eight employees. Since
1969, the Convention Center in Houston has grown
to at least 10 times its original size, with the result
that, with the Home Show in 1969, employees
represented by the Carpenters were used for the first
time by display companies in setting up and
dismantling exhibits. The Employer's consistent
practice in coping with the increased workload
occasioned by this expansion has been initially to
assign all of its own shop employees, hitherto and
currently represented by the Painters, for the erection
and dismantling work, and to hire employees
represented by the Carpenters only when additional
personnel is needed. There is no evidence that the
Employer contemplated hiring such additional per-
sonnel on thejob herein involved.
2. Certifications and collective-bargaining
,agreements
In 1956 the Board certified the Painters in a
collective-bargaining unit of the Employer's employ-
ees which included display-booth erectors.
On April 30, 1970, the Employer and the Painters
executed the current collective-bargaining contract
effective to March 7, 1973, covering display-booth
erection work, inter alia.
In December 1970 or January 1971, the Employer,
the Carpenters, and the Painters executed the
aforementioned tripartite agreement, effective to
January 1, 1972.
On December 10, 1971, more than a month after
the instant work stoppage, the Employer and the
Carpenters executed a contract effective to June 28,
1974, covering, inter aka, the erection of display
booths. We attach no importance to this latter
Carpenters contract in making our award herein,
inasmuch as the contract was not in existence at the
time of the work stoppage and is also in direct
conflict with the Painters preexisting and still current
contract covering the disputed work.
In our view, the aforementioned tripartite agree-
ment, which was operative during both the term of
the Painters contract and the period of the instant
work dispute, clearly expressed the acquiescence of
all of the parties to this proceeding in the Employer's
work practices as they existed at the time of the work
2 We disagree with our colleagues' view that the tripartite agreement
clearly and unambiguously specifies precisely what work was required to be
assigned to the craftsmen represented by each of the two unions and that
therefore this agreement constituted an agreed -upon method for the
voluntary adjustment of the dispute within the meaning of Sec 10(k)
It is true that this agreement indicates certain specific types of work
which "will be performed" by carpenters and other types of work that "will
be recognized as Painters work " Taken at face value and without
consideration of other contract provisions of the tripartite agreement, past
stoppage. Thus, article II, section A of the tripartite
agreement provided, in substance, that "without
waiving past jurisdictional histories and for the sole
purpose of and limited to this Agreement," certain
listed work was to be performed by carpenters.
Thereafter, article II, section C provides in part as
follows:
The parties agree that the Employer may employ
regular exhibit employees on the work set out in
Section A or Section D if the regular exhibit
employees are recognized journeymen-exhibitors
or journeymen-decorators and said Employees
are represented by Local 550, but it is expressly
understood membership in Local 550 is not a
condition of employment with employer ... .
Article II, section D, provides, in part, as follows:
The Employer and the Unions agree, without
waiving Sign and Pictorial Painter Local Union
550's past jurisdictional history and solely for the
limited purpose of this Special Agreement that the
following work will be recognized as Sign and
Pictorial Painters work and Employer further
agrees to contract the Sign and Pictorial Painters
Local Union 550 in obtaining qualified employ-
ees. If the Sign and Pictorial Painters Local
Union 550 is unable to supply the number of
individuals requested by employer within a
reasonable time, the employer and/or Union shall
exert every effort to obtain the necessary man-
power as quickly as possible.
By the express provisions of these sections, the
parties thus clearly agree that they will not waive past
jurisdictional history, that the Employer may employ
its regular employees, herein represented by the
painters, to perform display-booth erection and
dismantling work, and that the Employer and the
Painters shall use their best efforts to obtain
additional manpower, should the Painters be unable
to supply sufficient help. This is precisely in accord
with the Employer's work practices which it claimed
were operative at the time of the dispute-namely, to
assign its employees exclusively for booth-erection
work where they were numerically capable of
performing the work, and to hire carpenters only
when the job demanded more help. For the above
reasons, we find without merit the Carpenters work
claim based on its current contract.2
practice , and the Painters separate contract with Brede , perhaps there would
be some merit in our dissenting colleagues ' position However , as noted
above, after considering these additional matters, we cannot perceive the
clarity in the tripartite agreement to which our colleagues allude indeed, it
is those rival claims raised because of the Painters agreement. the past
practice of the parties , and by the several provisions of the tripartite
agreement itself which require the resolution of this dispute through our
usual I0(k) procedures Thus, as the Supreme Court observed in N L R B v
Radio and Television Broadcast Engineers Union , Local 1212, International
CARPENTERS, LOCAL UNION 213 779
3. Efficiency and economy of operations
It appears that the employees of the Employer
normally construct and build the displays in the
Employer's shop prior to erection at the exhibit site.
Thereafter, these same employees dismantle and
pack the displays for shipment to the exhibit site.
Clearly, the employees of the Employer are totally
familiar with the design and construction of the
display and are more familiar with its erection and
dismantling than would be carpenters employed at
the exhibit site. Although it appears that carpenters
are capable of performing the work in dispute,
because of their complete familiarity with the
display, the employees of the Employer are more
efficient in unpacking, erecting, and thereafter again
dismantling the Employer's displays.
Testimony in the record also reveals that the
employees to whom the Employer assigned the work
in dispute are permanently employed by him, are
skilled in all phases of the Employer's work, and may
be expediently shifted from job to job with no waste
of time or money. Thus being able to assign the work
in dispute to his own employees, the Employer is in a
better position to utilize his employees' full range of
skills, resulting in savings of time and money, along
with increased efficiency.
Conclusions
Upon consideration of all pertinent factors in the
entire record, we conclude that the Employer's
employees are entitled to perform the disputed work.
The award of the work to its employees is consistent
with the Employer's contract with the Painters, and
with area practice and will result in more efficient
and economical operations. We shall, therefore,
determine the existing jurisdictional dispute by
awarding the erection of convention exhibit booths
to the employees employed by the Employer and
represented by the Painters.3 In making this determi-
nation the Board is awarding the disputed work to
employees represented by Local 550 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
Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting
System), supra , 576-577
when Congress created this new type of unfair labor practice by
enacting § 8(b)(4)(D) as part of the Taft- Hartly Act in 1947, it also
added § 10(k) of the Act Section 10(k) quite plainly emphasizes
the belief of Congress that it is more important to industrial peace that
jurisdictional disputes be settled permanently than it is that unfair
labor practice sanctions for jurisdictional strikes be imposed upon
proceeding, the National Labor Relations Board
hereby makes the following determination of dispute.
1. Employees employed by Brede, Inc. of Hous-
ton, who are currently represented by Sign and
Pictorial Painters Local Union No. 550, are entitled
to the erection and dismantling of convention exhibit
booths in Houston, Texas, and vicinity.
2. Carpenters Local Union No. 213 and Carpen-
ters District Council of Houston and Vicinity are not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require the Employer to award
the above work to its members or employees it
represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Carpenters Local
Union No. 213 and Carpenters District Council of
Houston and Vicinity shall notify the Regional
Director for Region 23, in writing, whether they will
or will not refrain from forcing or requiring the
Employer, by means proscribed by Section
8(b)(4)(D), to award the work in dispute to its
members rather than to employees represented by
the Painters.
CHAIRMAN MILLER AND MEMBER PENELLO , dissent-
ing:
Under the facts of this case, unlike our colleagues,
we would have granted the motion to quash the
notice of hearing.
The special facts which lead us to this conclusion,
include principally the existence of a tripartite
agreement executed by the Employer and the two
unions here involved, which clearly and unambigu-
ously specified precisely what work was required to
be assigned to the craftsmen represented by each of
the two unions.
It thus seems to us that the parties' agreement
precluded any necessity for our having engaged in
the necessarily rather lengthy process of holding a
10(k) hearing. Rather, we would hold that the notice
of hearing should have been quashed, since we would
accord to the agreement of the parties the same
weight as the Board has always accorded to a
determination of work assignment made by a
tribunal selected by the parties. Thus if, as here, one
of the Unions picketed in disregard of its agreement,
we would be of the view that the General Counsel
could proceed directly to an invocation of Section
8(b)(4)(D) in order to restrain the illegal jurisdiction-
al picketing, just as he does, for example, in the case
Unions [Footnotes omitted ]
Our colleagues contend that an award to the Painters may well operate
in contravention of the tripartite agreement to which all the parties were
bound Clearly , as noted elsewhere herein , we cannot attribute to the
tripartite agreement that preciseness as to work jurisdiction which our
colleagues accord it But, in any event , the tripartite agreement expired
shortly after the events involved in the instant dispute and we cannot
speculate as to events which may or may not occur in the future
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of picketing which violates the terms of a Joint Board
award where all parties have previously bound
themselves to the Joint Board's procedures.
In our view, the parties' agreement here should
properly be construed as an agreed-upon method for
the voluntary adjustment of the dispute within the
meaning of Section 10(k). While that statutory
terminology most commonly refers to a procedural
route which the parties have agreed should be
followed in order to arrive at a work assignment
which must then be accepted by all parties, we see no
reason why it should not also encompass an advance
agreement among all parties as to the specifics of the
work assignment.
Were the agreement open to interpretative prob-
lems so that each craft had a colorable claim under
it, then there might well be reason for us to resolve
the dispute through our usual 10(k) procedures. But
such is not the case here.
The procedure approved by our colleagues not
only sanctions a lengthy hearing process which seems
to have been wholly superfluous and unnecessary on
the facts here, but their decision has also resulted in
the anomaly of an award which may well operate in
contravention of an agreement to which all the
parties were bound. For our colleagues have awarded
all of the booth erection work to employees repre-
sented by Local No. 550 of the Painters, whereas the
agreement among the parties specifies that such work
shall be assigned to employees represented by the
Carpenters Union in the event that sufficient painters
are not available. Thus, should there be insufficient
painters available, adherence to the contract would
apparently violate the award made by a majority of
this Board. Such are the perils of this unnecessary
and undesirable interjection of this Board's judgment
into a situation which ought to be governed by the
agreement to which the parties had all voluntarily
agreed.