Local 193, Carpenters

National Labor Relations Board - Board Decisions

Aug 17, 1973

205 N.L.R.B. 604 (N.L.R.B. 1973)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 193, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO' and Associated
of the Act and that it will effectuate the policies of the
Act to assert jurisdiction in this proceeding.
General Contractors of Massachusetts , Inc.2 and
George E. Emerson , Inc .3 and Local 473, Laborers II THE LABOR ORGANIZATIONS INVOLVED
International Union of North America , AFL-CIO.°
Cases 1-CD-305 and 1-CD-326 There is no issue as to the status of the Laborers and
the Carpenters, which we find to be labor organiza-
August 17, 1973 tions within the meaning of Section 2(5) of the Act.
DECISION AND DETERMINATION OF
DISPUTE
III THE 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 AGC of Massachusetts alleging that
the Carpenters violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed conduct with an
object of forcing or requiring the Employer to assign
certain work to its members rather than to employees
represented by the Laborers.
A hearing was held before Hearing Officer Francis
X. McDonough on July 27 and October 13 , 1972, and
on April 6, 1973.5 The parties appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce
evidence bearing on the issues. Thereafter , the Car-
Penters and the Laborers filed briefs.
Puruant 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 made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a corporation located in Pittsfield, Massachu-
setts, is a general contractor in the construction
business and that the Employer annually receives
from outside the State of Massachusetts goods and
materials valued in excess of $50,000. The parties stip-
ulated, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
1 Herein called the Carpenters
2 Herein called AGC of Massachusetts
3 Herein called the Employer
° Herein called the Laborers
5 Pursuant to a Board Order , dated February 26, 1973, the hearing was
reopened for the purpose of adducing evidence with respect to the 8 (b)(4)(D)
charge
A. Background and Facts
The Employer is the general contractor for the con-
struction of a new building at North Adams State
Teachers College, North Adams, Massachusetts. The
Employer also acts as the subcontractor for all the
masonry work on this project.
Pursuant to its contract with the Laborers 6 and in
accord with its own and area practice among maso-
nary contractors, the Employer in April 1972' as-
signed to employees represented by the Laborers the
work of erecting all scaffolding which was to be used
primarily by masons.
On June 7, 1972, Marvin Simon, business agent of
the Carpenters, whose members had other duties on
the project, informed both the Employer's superinten-
dent on the North Adams job and Ralph Emerson,
president of the Employer, that its members would
not work on any scaffolding built by laborers. Be-
tween that date and early August 1972, the carpenters
refused to do any work which involved masonry scaf-
folding.
Thereafter, the Employer, a member of AGC of
Massachusetts, received from the latter a document
entitled "Recommended Labor Policy," which sug-
gested, inter alga, that "scaffolding more than 14 feet
in height shall be erected and dismantled by carpen-
ters with laborers tending the carpenters." Upon in-
corporation of this suggestion in a new contract
negotiated by the Laborers and the General Contrac-
tors Association of Pittsfield, Massachusetts,' the Em-
ployer on August 3 assigned all masonry scaffolding
over 14 feet in height to employees represented by the
Carpenters. However, when the Laborers requested
advice thereon from the National Joint Board for Set-
tlement of Jurisdictional Disputes in the Building and
Construction Industry, the latter on August 10 wrote
the Employer that "it is a violation of the Procedural
Rules [of the Joint Board] for a contractor . . . to
6 This contract extended from May 19, 1969, to May 31, 1972
' Unless otherwise specified, all dates below refer to 1972
8 James V Merlom, president of the Massachusetts Laborers District
Council, testified that as of the hearing date, April 6, 1973, the contract was
not yet in effect because it had not been approved by the Construction
Industry Stabilization Committee
205 NLRB No. 96
LOCAL 193, CARPENTERS 605
change [an] assignment unless there is agreement be-
tween the trades or a directive from the Joint Board."
On August 14, the Employer received a call from
AGC stating That the Employer must reassign the
disputed work to the laborers in accordance with the
determination of the Joint Board.
Thereafter, Emerson telephoned Simon to inform
him that he was turning the assignment back to the
laborers because of the AGC directive. Simon replied
that he would have to check with the International
representative of the Carpenters. On September 7, the
carpenters worked 3-1/2 hours and walked off thejob
after Simon had a conversation with the steward. Al-
though the carpenters returned to work on September
12, Simon, on September 19, told Emerson that they
would not work on any scaffolding erected by the
laborers. The carpenters continued to perform certain
duties at the jobsite until September 26, but per-
formed no work relating to the masonry scaffolding.
On the latter date, the carpenters walked off the job
because the laborers continued to build the scaffold-
ing. They returned to work on October 3 after com-
mencement of an injunction proceeding in the United
States District Court for the District of Massachu-
setts," and pursuant to a Stipulation of the Parties
affirmed by the court.
B. The Work in Dispute
The work in dispute is the erection of masonry
scaffolding at the North Adams State Teachers Col-
lege project in North Adams, Massachusetts.
the Employer's and area practice, economy, and effi-
ciency.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 and
that there is no agreed-upon method for the voluntary
adjustment of the dispute.
The record establishes that there is no agreed-upon
method for settling the dispute. The record also shows
that on June 7 the business agent of the Carpenters
told Emerson and the Employer's superintendent that
the Carpenters claimed the disputed work and would
not permit any of its members to perform tasks on
scaffolding built by the laborers. Between that date
and early August, when the work was temporarily
assigned to the carpenters, the latter engaged in a
partial work stoppage by refusing to perform any
work which involved masonry scaffolding. Upon the
Employer's reassignment of the disputed work to the
laborers, the business representative reiterated his po-
sition, the carpenters then engaged in partial work
stoppage, and subsequently walked off the jobsite un-
til October 3, the date of the injunction proceeding.
In view of the foregoing, we find that there is rea-
sonable cause to believe that there has been a viola-
tion of Section 8(b)(4)(D) of the Act and that the
dispute is properly before the Board for determina-
tion.
C. Contentions of the Parties
The Carpenters contends that the construction of
all scaffolding in excess of 14 feet in height should be
awarded to its members on the basis of its agreement
with the Building Contractors of Northern Berkshire
County, Massachusetts; 10 a decision by the Joint
Board, dated July 6, 1968, involving a project in Mich-
igan City, Indiana; an agreement dated April 23,
1963, between the Internationals of the Carpenters
and Laborers with respect to disputes in the New
England States;" and the Recommended Labor Poli-
cy of AGC of Massachusetts.
The Employer and the Laborers contend that the
disputed work belongs to the laborers on the basis of
9 Civil No 72-I979-G
10 This agreement was for the period May I, 1969, to April 30, 1972, and
incorporated by reference a Joint Board decision of April 28, 1926, awarding
to the Carpenters erection of "self-supporting scaffolding over fourteen feet
in height "
11 According to James V Merlon and Patrick J Mele, two officials of the
Laborers , the latter terminated the agreement in 1969 because the Carpenters
had not observed its terms
E. Merits of the Dispute
The record shows that the Employer, a general con-
tractor which which has done its own masonry work
since it began business in 1946, has followed the prac-
tice of having its laborers erect scaffolding which is
used primarily for masonry work. The laborers per-
form that work during the lulls after they complete
their duties as tenders for the masons. Although Em-
erson testified that the carpenters also possess the
necessary skills to erect the masonry scaffolding as-
signed to the laborers, he found it more efficient and
economical to assign the work of mason tending and
the building of scaffolding to the same employees.
The Employer's practice of assigning the disputed
work to the laborers is in accord with the practice of
other masonry contractors in the area. Although the
Carpenters cites various agreements and Joint Board
determinations, they are of little probative value in
the instant proceeding as it appears that the 1963
agreement between the Internationals was terminated
and the other agreements and determinations pertain
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to other areas or times. It is particularly significant
that the Carpenters have no contracts with the mason-
ry contractors in the area wherein the Employer and
the jobsite are located.
Other factors usually considered by the Board in
jurisdictional dispute cases provide little assistance in
determining the dispute. Thus, neither of the Unions
has been certified. Although the original assignment
to the laborers was made pursuant to the Employer's
then current contract with the Laborers, the subse-
quent assignments to the carpenters and then to the
laborers follow no meaningful pattern.
Upon the entire record, after full consideration of
all relevant factors here involved, we believe that the
work in dispute should be awarded to employees rep-
resented by the Laborers. The fact that the
Employer's assignment conforms to its own and area
practice, the fact that the laborers employed by the
Employer not only have the requisite skills but are
familiar with all facets of the work, and the attendant
efficiency and concurrent economies of utilizing the
services of laborers as both mason tenders and erec-
tors of masonry scaffolding lead us to conclude that
the Employer's assignment of work to laborers is a
proper one.12 Therefore, we shall assign the work in
question to employees of the Employer who are repre-
sented by the Laborers. In making this determination,
which is limited to the controversy that gives rise to
12 See Newton, Massachusetts District Council, United Brotherhood of Car-
penters and Joiners of A merica, AFL-CIO (Porrazzo and Hurley Co , Inc,), 177
NLRB 158, United Brotherhood of Carpenters and Joiners of America, Local
No 213, AFL-CIO (General Masonry Inc), 175 NLRB 616
this proceeding, we are not assigning the work to the
Laborers 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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of George E. Emerson, Inc., who are
represented by Local 473, Laborers International
Union of North America, AFL-CIO, are entitled to
perform the work of erecting masonry scaffolding at
the construction site of the North Adams State Teach-
ers College in North Adams, Massachusetts.
2. Local 193, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require the Employer, George E. Emerson,
Inc., to assign the above work to employees repre-
sented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 193, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, shall notify the Regional Director for Re-
gion 1, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means pros-
cribed by Section 8(b)(4)(D) of the Act, to assign the
work in dispute to employees represented by it rather
than to employees represented by Local 473, Laborers
International Union of North America, AFL-CIO.