Local 1266, United Brotherhood Carpenters, Etc.

National Labor Relations Board - Board Decisions

May 3, 1962

137 N.L.R.B. 68 (N.L.R.B. 1962)

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 1266, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO and William Matera, Inc. Case No.
23-CD-47. May 3, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by William Matera, Inc., herein called Matera, alleging
that Local No. 1266, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, herein called Local 1266 or the Respondent,
had induced or encouraged employees to strike for the purpose of
forcing Oscar Abbott Contractors, Inc., herein called Abbott, to as-
sign particular work to members of the Respondent rather than to
members of Local 14, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, herein called Local 14. A duly scheduled
hearing was held before Joseph I. Nachman, hearing officer, on Au-
gust 22, 1961. All parties who appeared at the hearing were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing upon the issues. The rulings of the
hearing officer made at the hearing are free from prejudicial error and
are hereby affirmed. Thereafter, Matera and Local 1266 filed briefs
which have been duly considered.
Upon the entire record in the case, the Board makes the following
findings :
1. Matera is a general contractor engaged in the construction in-
dustry with offices in San Antonio, Texas. It was stipulated by the
parties that Matera annually purchases materials valued in excess of
$100,000 from points outside the State of Texas. Accordingly, we
find that Matera is engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to assert jurisdic-
tion herein.
2. The parties stipulated and we find that both Local 14 and Local
1266 are labor organizations within the meaning of Section 2(5) of
the Act.
3. The dispute.
A. The work in dispute
Oscar Abbott Contractors, Inc., is a specialty contractor in the con-
struction industry doing what is essentially carpentry work but of
a highly specialized type. Its regular area of operations is San
Antonio, Texas, and its employees are represented by Local 14, whose
territorial jurisdiction covers that part of Texas. For its special kind
of work, Abbott has approximately eight carpenters, all members of
Local 14, who are permanent salaried employees instead of the usual
hourly workers found among craftsmen in the construction industry.
They work "rain or shine," and Abbott's policy is to retain them from
137 NLRB No. 4.
LOCAL 1266, UNITED BROTHERHOOD CARPENTERS. ETC. 69
job to job because its particular work requires such a trained cadre.
The dispute which gave rise to this proceeding occurred when
Abbott took on a subcontract from Matera, who, as a general con-
tractor, undertook to construct three buildings in San Marcos, Texas,
for the Board of Regents of Southwest Texas State College. Abbott
was to work on three buildings, called Units A, B, and C on the record.
The special carpentry work required of Abbott consisted of con-
structing, installing, and removing the wooden frames, open center-
ing, and steel forms or pans to be used in making the building's floors.
It is this work which became the focal point of the dispute aired at
the hearing.
Local 1266, the Respondent, affiliated with the same International
Union as Local 14, has an established territorial jurisdiction in that
part of Texas which includes San Marcos. Because its carpenters
were "foreigners" to Local 1266's area, and in order to comply with in-
terunion regulations of these locals, Abbott paid $5 to Local 1266 for
each of its eight carpenters as clearance or temporary card transfer
dues to permit them to work in its jurisdiction. The charge accuses
Local 1266 of having nevertheless induced employees to strike in
order to force Abbott to assign this work to its members instead of to
the visiting carpenters from Local 14.
B. The contentions of the parties
The Respondent concedes, as the evidence clearly shows, that it
established a picket line at the San Marcos project, that a number of
diversified craftsmen ceased work, and that the picketing was intended
to provoke this result. Matera and Abbott contend that the object
of this action was to force Abbott to hire Local 1266 members in place
of the San Antonio carpenters from Local 14.
In defense, the Respondent argues that its purpose was not to force
a change of work assignment upon Abbott, but only to compel that
subcontractor to pay its own employees the established carpenter
hourly rate as required by the Local 1266 area agreement in effect
in its territorial jurisdiction. Because its position is that the notice of
hearing must be quashed and the proceeding discontinued entirely for
this limited reason, Local 1266 did not address itself at all to the merits
of any possible affirmative work award by the Board, and made no
contention that the eight carpenters to whom Abbott gave the work
are not entitled to continue to do it.
C. Applicability of the statute
The principal issue to be decided on this record is whether there
is reasonable cause to believe that Local 1266's object was the pro-
scribed one of compelling the transfer of a work assignment from one
class of employees to another.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abbott's work on the project started some time late in May or early
June 1961 on building A; buildings B and C were to start in August.
In June and July, McNeil, business agent of Local 1266, had several
conversations with Oscar Abbott, the president of Abbott, and with
A. W. Maurer, Matera's general superintendent, on the general sub-
ject of the carpentry work on the job. According to the testimony of
Maurer, early in June McNeil asked him ". . . how many men we
were going to use," and when Maurer referred him to Abbott, the
carpenter subcontractor, McNeil added ". . . he would like for him
[Abbott] to use some of his men." In later conversations, still accord-
ing to Maurer : "He [McNeil] always talked to me and emphasized
that he wanted some of his men on."
Abbott also testified to these early conversations in June. His recol-
lection was that he told McNeil of his eight-iman crew, that he would
pay the foreign dues of $5 to Local 1266 for each of them, that he
would hire additional men when needed from Local 1266 if qualified
men were available, and that, as he himself acted as foreman, he needed
no other men at that time. Abbott continued to say that while
McNeil seemed to agree with all this, each time they talked he kept
reiterating that he wanted some of his men on the job. Thus, on
June 26, McNeil ". . . stressed the point that he wanted me to hire
some of his men," and on July 10 ". . . asked me again when I was
going to use some of his men . . . he told me that he had men that
were loafing that were putting the pressure on him to go to
work . . . ," stating, "What am I going to do with my men?"
McNeil and Abbott also discussed the matter of hourly rates. Abbott
had no contract with Local 14 in the San Antonio area but he met its
area contract rates. The established hourly rate in San Antonio was
$3.25 per hour and Abbott paid his men $130 weekly, regardless of
how many hours they worked but never keeping them over 40 hours
per week. In Local 1266's jurisdiction, the contract rates were regu-
larly scheduled to be increased on July 1 to $3.35 per hour. McNeil
brought this matter to Abbott's attention and said that that rate must
be paid carpenters in his jurisdiction. Abbott refused it at first and
through the month of July adhered to his $130 weekly wage.
The picketing started on July 24 and continued through August 14.
Abbott raised his pay rates from the week beginning July 27 to $135
per week, or $3.371/2 per hour for a 40-hour week.
In substance, McNeil does not deny the testimony that he kept re-
peating he wanted jobs for his local members. Instead, he explained
it all as no more than proper expressions of concern by a conscientious
union representative seeking work for his members. He simply denies
any intent to have his men used instead of any of the eight specialist
carpenters of Abbott.
LOCAL 1266 , UNITED BROTHERHOOD CARPENTERS . ETC. 71
There is additional evidence, however, in the record indicating that
the picketing was aimed at more than a correction of wages. Maurer
testified that while talking of his plans to picket the project, McNeil
said to him on July 21, ". . . a lot of this trouble could have been
avoided if Abbott had hired his men." McNeil's version of this remark
is that all he said was that ".. . this [the picketing] could have been
avoided if we had had a steward on the job where he would have been
able to have checked the checks and that it was no more than right
for Mr. Abbott to have hired one of our men for steward." Abbott
never used more than five or six of his men at a. time on this project
and therefore there never was occasion to hire additional men locally.
If McNeil 's sole concern was, as he asserted at the hearing , merely to
obtain work for men over and above Abbott's cadre of eight, it is
unlikely that he would explain the picketing to Maurer as a protest
over failure to hire a steward. Further, McNeil admitted that on
about August 1 he was informed by Mr. Helms, a Labor Board Re-
gional Office representative, that Abbott had raised the wages and
was paying the increased carpenter rate as currently required by the
local area agreement. Local 1266 nevertheless continued to picket the
jobsite 2 more weeks. Asked at the hearing to explain the resultant
patent inconsistency between the continued picketing and Abbott's
compliance with Local 1266 's claim as now asserted , McNeil said,
"That is a good question, I would like to have a little time to think
about it." If McNeil's real objective, even after August 1, was the
wage protest, there would also be no reasonable explanation of why
Local 1266 did not also picket buildings B and C where Abbott started
work on August 2.
The picketing was discontinued on the afternoon of August 14,
during an injunction proceeding hearing in the Federal district court,
and the daffy before that court issued a restraining order against the
Respondent 's picketing . In the light of all the foregoing facts, there
is little persuasion in the Respondent 's assertion that it ended the
picketing because only on August 14 did it see written proof of proper
wage payment by Abbott and that from that fact it must be inferred
that the object always was only a matter of wages.
In view of McNeil's repeated demands that Local 1266 members be
put to work, his admission to the general contractor that picketing
could have been avoided had Abbott hired a Local 1266 man, and the
otherwise unexplained continuation of the picketing after the wage
scale had been corrected and the Respondent advised of the fact, we
do not believe McNeil's statement, that he did nothing more than what
any good union agent would do, can offset the inference that the Re-
spondent was seeking , by the pressure of a work stoppage , to compel
Abbott to replace its employees with Local 1266 union members. We
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore find that there is reasonable cause to believe that a violation
of Section 8(b) (4) (D ) has occurred , and that the dispute is properly
before the Board for determination pursuant to Section 10(k) of the
Act.
D. Merits of the dispute
As stated above, Local 1266 advanced virtually no significant or
pertinent reason why the disputed work should be assigned to its mem-
bers instead of to the Local 14 carpenters long used by Abbott. Be-
cause of the particular facts of this case, no issue is raised as to work
claims based upon territorial jurisdictional claims of different car-
penter locals affiliated with a single international union, and our deci-
sion therefore will in no way touch upon such questions. The relevant
facts that do appear on this record fully warrant an affirmative award
to the Local 14 carpenters.
The carpentry work involved is highly specialized; Abbott's car-
penters possess and exercise the skill required for its adequate per-
formance; Abbott has long employed them and desires to continue
their hire, and there is convincing evidence that specialty contractors
like Abbott generally use carpenters of this type for such work. In
these circumstances, and on consideration of the record as a whole,
we shall determine the existing jurisdictional dispute by deciding that
the carpenters in Abbott's employ, represented by Local 14, are en-
titled to the construction work involved. Our present determination
is limited to the particular controversy which gave rise to this pro-
ceeding. In making this determination, we are assigning the disputed
work to carpenters in Abbott's employ, represented by Local 14, but
not to Local 14 or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following Determination of
Dispute pursuant to Section 10(k) of the Act:
1. Carpenters in the employ of Abbott Contractors, Inc., who are
represented by Local Union 14, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, are entitled to perform all the
carpentry work involved in the pan or steel form method of floor
construction at William E. Matera, Inc.'s, jobsite in San Marcos,
Texas.
2. Local Union 1266, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is not, and has not been lawfully entitled to
force or require Abbott Contractors, Inc., to assign the above work
to its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 1266, United Brotherhood of Carpenters and Joiners
BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 73
of America, AFL-CIO, shall notify the Regional Director for the
Twenty-third Region, in writing, whether or not it will refrain from
forcing or requiring Abbott Contractors, Inc., by means proscribed by
Section 8(b) (4) (D), to assign the work in dispute to its members
rather than to employees of Abbott represented by Local Union 14,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO.
MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.
John Brown , Irvin L. Gossett and J . C. West, Jr., d/b/a Brown
Food Store; Tootie Schnaubert d/b/a Cashway Food Store;
Safeway Food Store , Inc.; Arnold - Crabb d/b/a Thrifty Way
Food Store ; Food Jet , Inc.; and Lenn Jones, Agent of Multi-
Employer Bargaining Association and Retail Clerks Inter-
national Association , Local 462. Cases Nos. 28-CA-626, 28-CA-
627, 28-CA-629-1, 28-CA-629-2, 28-CA-630, and 28-CA-640.
May 4, 1962
DECISION AND ORDER
On August 23, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents, with the exception of Food Jet, Inc., and
the individual Respondent, Lenn Jones, had engaged in and were en-
gaging in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. Thereafter, the
Respondents, except for the two mentioned above, filed exceptions to
the Intermediate Report together with a supporting brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
cases , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner for the reasons stated below.
Each of the Respondents operates one or more retail food stores in
Carlsbad, New Mexico. They have been bargaining on a multiem-
ployer association basis with the Union since 1957 and have had a
series of collective-bargaining contracts since that time. ' In January
1960, the Employer Association and the Union opened negotiations
for a new contract, and by March 2 they had agreed on all terms except
the Union's proposal for retroactive wage increases and the effective
' The relationship between the contracting parties has always been an amicable one, and
their contracts have contained union-shop provisions.
137 NLRB No. 6.