Carpenters, Locals 1320 and 1419

National Labor Relations Board - Board Decisions

Jun 26, 1973

204 N.L.R.B. 523 (N.L.R.B. 1973)

523 CARPENTERS, LOCALS 1320 AND 1419
United Brotherhood of Carpenters and Joiners of
America , Carpenters District Council of Western
Pennsylvania, and its Locals 1320 and 1419, AFL-
CIO (Robert Koontz , d/b/a Robert Koontz Masonry
Contractor) and Wm . Garlick & Sons, Inc. and La-
borers' International Union of North America, La-
borers' District Council of Western Pennsylvania,
and Local No. 419, AFL-CIO
Laborers' International Union of North America, La-
borers' District Council of Western Pennsylvania,
and Local No. 419, AFL-CIO (Robert Koontz,
d/b/a Robert Koontz Masonry Contractor) and
Wm. Garlick & Sons , Inc. and United Brotherhood
of Carpenters and Joiners of America , Carpenters
District Council of Western Pennsylvania , and its
Locals 1320 and 1419 , AFL-CIO. Cases 6-CD-469-
I and 6-CD-469-2
June 26, 1973
I BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that Robert
Koontz, d/b/a Robert Koontz Masonry Contractor,
is engaged in commerce within the meaning of the
National Labor Relations Act and is subject to the
jurisdiction of the National Labor Relations Board.
We find that it will effectuate the purposes of the Act
to assert jurisdiction herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the United
Brotherhood of Carpenters and Joiners of America,
Carpenters District Council of Western Pennsylvania,
and its Locals 1320 and 1419 , AFL-CIO, and Labor-
ers' International Union of North America , Laborers'
District Council of Western Pennsylvania , and Local
No. 419 , AFL-CIO, are labor organizations within
the meaning of the Act.
DECISION AND DETERMINATION OF
DISPUTE
By MEMBERS FANNING, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Wm. Garlick & Sons, Inc., herein
called Garlick, alleging that United Brotherhood of
Carpenters and Joiners of America, Carpenters Dis-
trict Council of Western Pennsylvania, and its Locals
1320 and 1419, AFL-CIO, herein called the Carpen-
ters, and Laborers' International Union of North
America, Laborers' District Council of Western
Pennsylvania, and Local No. 419, AFL-CIO, herein
called the Laborers, had violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activity
with an object of forcing or requiring Garlick to as-
sign work to employees represented by each of them.
The cases were consolidated and a hearing was held
before a Hearing Officer in February and March
1973, in Pittsburgh, Pennsylvania. All parties ap-
peared at the hearing and were afforded full opportu-
nity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the is-
sues.
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 rulings of the Hearing Officer are free from
prejudicial error and are hereby affirmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
III THE DISPUTE
A. The Background Facts
The Employer (subcontractor) entered into a con-
tract with Wm. Garlick & Sons, Inc. (general contrac-
tor), to perform masonry work on an elementary
school being constructed in Meyersdale , Pennsylva-
nia.
The Employer , a masonry contractor , is a member
of the Keystone Building Contractors ' Association,
Inc., and , during the time of the dispute herein, the
Employer through the Association had contracts with
the Unions involved.
The contract with the Carpenters provides in article
V, in part:
Excluding masonry and plaster , all work in con-
nection with the installation , erecting and/or ap-
plication of all materials and component parts of
walls and partitions regardless of their material
composition or method or manner of their instal-
lation attachment or connection . . . and all
other necessary or related work in connection
therewith shall be performed by employees cov-
ered by this Contract.
The contract with the Laborers provides in article
XIX, in part:
With reference to the Masonry Contractors, the
Laborers will do the entire erection and disman-
tling of ALL Scaffolds.
Both the above contracts were effective when the
dispute arose.
The Employer prior to beginning the work in dis-
pute signed a document assigning the erection of scaf-
204 NLRB No. 76
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
folds to the laborers.
Before commencing the work the Employer dis-
cussed on more than one occasion the disputed work
with the Carpenters Union. The result of these con-
versations and the signed prejob assignment was that
when the erection of the scaffolding began, a compos-
ite crew of one laborer and one carpenter was used to
do the work in dispute.
Soon after the work began the Laborers com-
plained about the presence of the carpenter. After
several days on the job the carpenter was, according
to the Employer, laid off and the work continued
without a carpenter. Upon Employer's refusal to use
an employee represented by the Carpenters, the car-
penters started picketing. The picketing ended only
after it was agreed that the Employer would reinstate
the carpenter.
The carpenter was laid off a second time after the
Laborers protested the use of a composite crew and
the Employer was advised by the National Joint
Board that he should proceed with the laborers per-
forming the work. (The Employer has not signed an
agreement that requires that jurisdictional disputes be
submitted to the National Joint Board.)
Immediately thereafter the Carpenters picketed
and the Employer soon agreed to once again use a
composite crew. On the next working day the Labor-
ers picketed the worksite. One day later Garlick filed
the charges herein and informed the parties that it
would continue the work from then on using laborers.
The work was in progress at the time of hearing and
it was being completed by the laborers.
B. Work in Dispute
The work in dispute is the erection and dismantling
of tubular metal scaffolding reaching a height of 14
feet or above at the site of construction of the Meyers-
dale Area Elementary School in Meyersdale, Pennsyl-
vania.
C. Contentions of the Parties
The Employer, the Charging Party, and the Labor-
ers contend that the work in dispute was initially as-
signed to laborers and that regardless of height the
contract provides for such assignment. They argue
that the work requires little skill and that laborers can
perform the work competently and safely.
The Employer testified that, free from coercion, he
prefers to employ laborers in erecting and dismantling
scaffolding because of ability, efficiency, and utiliza-
tion of manpower.
The Laborers contends that area practice supports
its claim to the work.
The Carpenters contends in its brief that it was
initially assigned the work when the Employer called
its representative and requested a carpenter for the
work in dispute . The Carpenters points out that the
Employer has used carpenters in the past to perform
the disputed work and that the Employer 's intent to
adhere to past practice was reaffirmed in discussions
with the Employer prior to the beginning of work.
The Carpenters argues that the employee it repre-
sents was relieved from his work by the Employer
only after heavy economic pressure was brought to
bear by he competing Laborers Union . The Carpen-
ters also argues that the record demonstrates that the
employees it represents are best suited for the safest,
most efficient scaffolding work in excess of 14 feet in
height.
The Carpenters argues that the contract between it
and the Employer , Employer 's past practice , industry
practice , agreements among some of the parties,' and
previous awards by the National Joint Board support
a determination favorable to it.
The Laborers in its brief asks that , on the basis of
the testimony concerning area practice , the order be
extended to include all future jobs by masonry con-
tractors covering the erecting and dismantling of tu-
bular metal scaffolding in the counties of Bedford,
Somerset , and Fulton.
The Carpenters in response states that the record
does not support the issuance of a broad order. It
argues that any order affecting jobs beyond the Mey-
ersdale site would actually be a determination of fu-
ture assignments and would work possible injustice
and hardship to all parties.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute, pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated. The
record indicates that both the Laborers and Carpen-
ters did picket the Meyersdale construction site. The
record also indicates that representatives of both
Unions did threaten such picketing in the hope of
forcing the Employer to assign the work to employees
represented by them.
Based on the evidence presented in this case, we
conclude that there is reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred.
1 A 1965 agreement between Carpenters' District Council of Pittsburgh
and Vicinity and Laborers' District Council of Western Pennsylvania as-
signed work similar to that in dispute to the employees represented by the
Carpenters The agreement was abrogated I year later, September 8, 1966.
CARPENTERS , LOCALS 1320 AND 1419
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due concern to various relevant factors.' The Board
has held that its determination in a jurisdictional dis-
pute is an act of judgment based upon consideration
of and balancing of all relevant factors.3
The following factors are relevant in making a de-
termination of the dispute before us:
1. Certification and collective-bargaining
agreements
There has been no evidence that the labor organiza-
tions involved herein have been certified by the
Board, nor is there evidence indicating that a Board
certification covers the disputed work.
The Employer is a member of the Keystone Build-
ing Contractors' Association, Inc., of Harrisburg,
Pennsylvania, which has current collective-bargain-
ing agreements with the Laborers and Carpenters.
2. Company and area practice
The Employer would prefer that the laborers be
assigned the work. He has in the past made such
assignment but at times has added an employee repre-
sented by the Carpenters at its behest. Evidence that
the Employer assigned this work initially to the La-
borers outweighs the evidence to the contrary. The
Employer does not normally employ a carpenter.
The Employer presented evidence of area practice
for masonry contractors which supports his conten-
tions and outweighs the evidence of area practice of-
fered by the Carpenters.
3. Efficiency
The Employer has testified that it is more efficient
to assign the work to employees represented by the
Laborers. Both carpenters and laborers possess the
requisite skills but laborers have a greater facility for
the heavy work involved in erecting and dismantling
scaffolds. When not erecting or dismantling the scaf-
folding the Employer can assign other duties to a
laborer. Evidence was presented to show that the use-
fulness of a carpenter to the Employer after the scaf-
folding is finished is so limited that it affects the
efficiency and economy of his work.
Z N.L. R.B. v. Radio and Television Broadcast Engineers Union , Local 1212,
International Brotherhood of Electrical Workers, A FL-CIO [Columbia Broad-
casting System], 364 U.S. 573 (1961)
3 International Association of Machinists, Lodge No. 1743, A FL-CIO (J A
Jones Construction Company), 135 NLRB 1402
CONCLUSIONS
525
Having considered all relevant factors present in
this case, we conclude that employees represented by
the Laborers are entitled to perform the work in dis-
pute. In reaching this conclusion we have taken par-
ticular note of the evidence of the Employer's
assignment to the Laborers, the fact that such assign-
ment is generally in accord with the Employer's past
practice, the fact that the bargaining agreement be-
tween the Employer, through the Keystone Building
Contractors' Association, Inc., and the Laborers is
compatible with this conclusion, the fact that employ-
ees represented by the Laborers possess the requisite
skills, and the fact that such an assignment will result
in efficiency of operation. In making this determina-
tion, we award the work to the employees of the Em-
ployer who are represented by the Laborers, but not
to that Union or its members. Our present determina-
tion is limited to the particular controversy which
gave rise to this proceeding.4
DETERMINATION OF THE 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 Robert Koontz Masonry Contrac-
tor, who are currently represented by Laborers' Inter-
national Union of North America, Laborers' District
Council of Western Pennsylvania, and Local No. 419,
AFL-CIO, are entitled to perform the work of erect-
ing and dismantling all tubular metal scaffolding in-
cluding scaffolding which will exceed the height of 14
feet at the Meyersdale Area Elementary School, Mey-
ersdale, Somerset County, Pennsylvania.
2. United Brotherhood of Carpenters and Joiners
of America, Carpenters District Council of Western
Pennsylvania, and its Locals 1320 and 1419, AFL-
CIO, are not entitled by means proscribed in Section
8(b)(4)(D) of the Act to force or require Robert
Koontz Masonry Contractor to assign such scaffold-
ing work to carpenters represented by United Broth-
erhood of Carpenters and Joiners of America,
Carpenters District Council of Western Pennsylvania,
and its Locals 1320 and 1419, AFL-CIO.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Brotherhood
The Laborers has requested in its brief a broad award covering this work
in three counties of Pennsylvania The basis for its request is area practice
A broad award would be issued only if, among other things, we were to find
that a similar dispute would be likely to arise Absent such a showing, we
hereby deny the request
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Carpenters and Joiners of America, Carpenters
District Council of Western Pennsylvania , and its Lo-
cals 1320 and 1419, AFL-CIO, shall notify the Re-
gional Director for Region 6, in writing , whether or
not it will refrain from forcing or requiring the Em-
ployer by means proscribed by Section 8(b)(4)(D) of
the Act , to assign the work in dispute to carpenters
represented by United Brotherhood of Carpenters
and Joiners of America , Carpenters District Council
of Western Pennsylvania, and its Locals 1320 and
1419, AFL-CIO, rather than to employees repre-
sented by Laborers' International Union of North
America, Laborers' District Council of Western
Pennsylvania , and Local No. 419, AFL-CIO.