LOCAL 46

National Labor Relations Board - Board Decisions

May 8, 1958

120 N.L.R.B. 837 (N.L.R.B. 1958)

LOCAL 46 837
Local 46, Wood, Wire and Metal Lathers International Union,
AFL-CIO and Building Trades Employers Association of Long
Island, Inc.
Local 46, Wood, Wire and Metal Lathers International Union,
AFL-CIO, and Wood, Wire and Metal Lathers International
Union, AFL-CIO and Acoustical Contractors Association of
New York, Inc. Cases Nos. 2-CD-140 and 9-CD-141. May 8,
1958
DECISION AND ORDER QUASHING NOTICE OF HEARING
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph 4 (D) of sec-
tion 8 (b), the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have
arisen...."
On March 20, 1957, Building Trades Employers Association of
Long Island, Inc. (herein called BTEA) filed with the Regional Di-
rector for the Second Region a charge against Local 46, Wood, Wire
and Metal Lathers International Union, AFL-CIO (herein called
Lathers Local 46) alleging that Lathers Local 46 had engaged in and
was engaging in unfair labor practices within the meaning of Section
8 (b) (4) (D) of the Act. This charge, as subsequently amended on
March 28, 1957, alleged, in substance, that Lathers Local 46 had
induced or encouraged employees of E. R. Howell Co. (herein called
Howell), D. Fortunato Inc. (herein called Fortunato), Jacobson &
Co., Inc. (herein called Jacobson), and other employers, to engage in
a concerted refusal to work in the course of their employment, with
an object of forcing or requiring such employers to assign particular
work to lathers rather than to carpenters. On April 2, 1957, Acous-
tical Contractors Association of New York, Inc. (herein called Acous-
tical Contractors) filed with the Regional Director for the Second
Region a charge against Lathers Local 46 and against Wood, Wire
and Metal Lathers International Union, AFL-CIO (herein called
the Lathers International). This charge alleged in substance that
Lathers Local 46 and the Lathers International had engaged in, and
induced and encouraged employees of Jacobson and other employers
to engage in, a concerted refusal to work in the course of their employ-
ment, with the object of forcing or requiring such employers to assign
particular work to employees in such labor organizations rather than
to employees in Local Union No. 1772 of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (herein called Carpen-
ters Local 1772).
120 NLRB No. 117.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charges and provided for a consolidated
hearing upon due notice to all the parties. The hearing was held on
July 2 and 18, August 15, and September 6 and 9, 1957, before I. L.
Broadwin, hearing officer. The Charging Parties and the Respond-
ents appeared at the hearing,' and the Nassau District Council of
Carpenters (herein called Carpenters District Council) was permitted
to intervene. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
ing on the issues. The rulings of the hearing officer made at the hear-
ing are free from prejudicial error and are hereby affirmed.
After the hearing was concluded, Lathers Local 46, the Lathers
International, Acoustical Contractors, and the Carpenters District
Council filed briefs which have been considered by the Board.
Upon the entire record in this case, the Board finds :
1. Fortunato, Howell, and Jacobson are engaged in commerce with-
in the meaning of the Act.
2. Lathers Local 46, the Lathers International, and Carpenters
Local 1772 are labor organizations within the meaning of the Act?
3. The dispute :
The Facts
In March 1956 Jacobson executed a subcontract with Howell, re-
quiring Jacobson to install acoustical ceilings in the Parkway Oaks
School, in East Farmingdale, New York, and another subcontract
with Fortunato, requiring Jacobson to perform similar work in the
Albany Avenue School, also in East Farmingdale, about 11/2 miles
away.
In August 1956 Jacobson executed a contract with Lathers Local 46,
in which Jacobson agreed to assign to lathers the work, inter alia, of
installing nailing bars and plasterboard. This contract was executed
after Lathers Local 46 had caused a strike at a job site not involved
in the instant case, and while injunction proceedings were pending
in the matter.' The contract contained the following provisions :
ARTICLE VI
WORK COVERED
(5) ... Frames of reinforcing steel , or units made of iron,
metal laths , wire lath or mesh , which have been made and as-
i Acoustical Contractors ' attorney appeared on Jacobson 's behalf. Howell , Fortunato,
and Local 1772 were not represented at the hearing , although served with notice thereof.
Howell and Fort»nato are members of BTEA.
2 In making this finding as to Carpenters Local 1772, we take official notice of our de-
cision in Wood , Wire & Metal Lathers' Internattional Union, Local 46, AFL-CIO (Jacobson
& Co., Inc.), 119 NLRB 1658.
8 See Jacobson & Co., Inc., supra.
LOCAL 46 839
sembled before arriving at the job, shall be handled after arrival
at the job by members of the Union... .
(7) The Union agrees that there shall be no restrictions of the
use of machinery, tools, appliances, or methods. Members of the
Union shall operate all machinery, tools and appliances.
ARTICLE VII
MANNING OF JOBS
The parties hereto agree that they will operate all projects
covered by this Agreement on a "Union Shop" basis subject to
ratification by an election of employees in accordance with the
Labor Management Relations Act of 1947. Should a sufficient
number of competent Union Journeymen be unavailable, the
employers reserve the right to employ such men as they can
obtain to execute their work until the condition is remedied and
competent Union Journeymen are available.
In November 1956 Jacobson requested the National Joint Board for
the Settlement of Jurisdictional Disputes in the Building and Con-
struction Industry (herein called the Joint Board) to determine
whether carpenters or lathers should be assigned to installing, inter
alia, the nailing bars and plasterboard in the school gymnasiums. In
December 1956 the Joint Board replied and awarded this work to
the carpenters.
Jacobson began work on the two schools about the end of 1956 or
the beginning of 1957. On March 18, 1957, Jacobson's construction
superintendent, James Peggie, directed Jacobson's lathers on each of
these projects 4 to install the hangers and the carriers in the gym-
nasiums. They refused to do so unless they were also assigned the
subsequent steps of installing the nailing bars and plasterboard.
Jacobson, however, acting pursuant to the Joint Board award, had
assigned this work to the carpenters. John Tierney, a business agent
and delegate of Lathers Local 46, told Peggie by telephone that he
could not authorize the lathers to go ahead on the Parkway Oaks
job, that proceedings were going on with the International, and that
there was nothing that could be done at that time. After talking to
Tierney by telephone, the lathers on that job "said" that they could
not go ahead without authorization from the delegate. After talking
by telephone to Tim Spillane, Lathers Local 46's business agent and
vice president of the Lathers International, the lathers on the Albany
Avenue job "told" Peggie that Spillane had told them that they
could not go ahead with the hangers and carriers in the gymnasium
4 One lathing foreman and one lathing shop steward were then working at each job site.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless they were also assigned the installation of the nailing bars and
the plasterboard.
The lathers' work stoppage continued until the beginning of May
1957, when the United States District Court issued an injunction
against it.
The contract between Jacobson and Lathers Local 46 expired in
June 1957.
Applicability of the Statute
Section 10 (k) of the Act, which empowers and directs the Board to
hear and determine disputes out of which Section 8 (b) (4) (D)
charges have arisen, also deprives the Board of authority to make
such a determination where "the parties to such dispute submit to
the Board satisfactory evidence that they have . . . agreed upon
methods for the voluntary adjustment of the dispute." 5
Before, and since, Lathers Local 46 executed its contract with
Jacobson, both the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, and the Lathers International have been
members of the Building and Construction Trades Department,
AFL-CIO, which is a signatory to the Plan for Settling Jurisdictional
Disputes-the agreement establishing the Joint Board. Accordingly,
we find that both these Internationals and their subordinate affiliates,
including Lathers Local 46, are bound by the Plan notwith-
standing the efforts of the Lathers International to disassociate itself
therefrom.6 Because Jacobson submitted the dispute to the Joint
Board in the first instance, and ultimately assigned the work in ques-
tion in the manner decided by the Joint Board, we find, in accordance
with precedent, that Jacobson, too, has agreed upon a voluntary
method for the adjustment of the dispute herein, namely, Joint Board
procedures.'
In view of the foregoing circumstances, showing the disputing
unions' membership in the Building and Construction Trades Council
and Jacobson's submission to the Joint Board, we conclude and find
that when the charge was filed the parties had agreed upon a method
for the voluntary adjustment of the dispute in question. The binding
effect of this agreement is not affected by the previously executed
contract between Jacobson and Local 46, since that contract was im-
pliedly made subject to the provisions of the statute relating to agreed-
upon methods for the voluntary adjustment of disputes.' Accord-
5 Jacobson & Co., supra.
See footnote 5, supra.
4 See footnote 5, supra.
8 Our conclusion that the parties had agreed upon a method of voluntary adjustment
renders it unnecessary for us to pass upon Acoustical Contractors ' contention that the
contract between Jacobson and Lathers Local 46 cannot serve as a basis for a determina-
tion in favor of the Respondents because it contains unlawful union -security provisions.
See United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
COTTAGE BAKERS 841
ingly, we find that the Board is without authority to determine the
dispute, and we shall quash the notice of hearing.'
[The Board quashed the notice of hearing.]
MEMBER BEAN took no part in the consideration of the above De-
cision and Order Quashing Notice of Hearing.
Industry of the United States and Canada , Local 428 (Philadelphia Association), 108
NLRB 186, 200 ; United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada , AFL, Local Union No. 177
(Carrier Corporation ), 111 NLRB 940, 945-946 ; United Association of Journeymen and
Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada,
Local 449, AFL (Refrigeration Equipment Co.), 112 NLRB 608, 616-617.
e In conformity with the Board 's decision in Wood, Wire and Metal Lathers Inter-
national Union, etc., AFL-CIO ( Acoustscal Contractors Association of Cleveland), 119
NLRB 1345, the charge herein will not be dismissed, but will remain on file in the
Regional Office pending final adjustment of the dispute
Harlan B . Browning and Roy J. Rasco , d/b/a Cottage Bakers
and Chauffeurs, Teamsters and Helpers Local Union No. 492,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Case No. 33-CA-388.
May 8, 1958
DECISION AND ORDER
On August 2, 1957, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1), (3), and (5) of the
Act, and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions
to the Intermediate Report and a brief in support.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
additions and modifications.
1. Concerning commerce and the Board's jurisdictional standards
the Trial Examiner concluded that the Board would assert jurisdic-
tion in this case involving the route salesmen of a single Employer
having inflow and outflow less than the Board's existing requirement.
He reached this conclusion in view of the fact that the Employer has
associated itself with other Employers in bargaining for its production
and maintenance employees, and that the Board would assert juris-
120 NLRB No. 99.