Local 337, Carpenters

National Labor Relations Board - Board Decisions

Dec 5, 1969

179 N.L.R.B. 909 (N.L.R.B. 1969)

LOCAL 337, CARPENTERS 909
Local 337, United Brotherhood of Carpenters and
Joiners of America ,, AFL-CIO, and Carpenters'
District Council of Detroit, Wayne , Oakland,
Macomb, St. Clair, Monroe and portions of
Sanilac and Livingston Counties, AFL-CIO and
John Perrone Co. and Carpentry Engineering, Inc.
and Millmen 's Local 1452, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
Cases 7-CD-217 and 7-CD-217(2)
December 5, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act , as amended,
following charges filed by John Perrone Co.,
hereinafter referred to as Perrone Co., and
Carpentry Engineering , Inc., against Local 337,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, hereinafter referred to as Local
337 or Carpenters', and Carpenters ' District Council
of Detroit , Wayne , Oakland , Macomb, St . Clair,
Monroe , and portions of Sanilac and Livingston
Counties , AFL-CIO, hereinafter referred to as
Council.' The charges alleged that Carpenters' and
Council had attempted to force Carpentry
Engineering to assign certain work to employees
represented by Carpenters' rather than to employees
represented by Millmen 's Local 1452, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter referred to as Local 1452 or
Millmen ' s, and had induced Perrone Co . employees
to engage in a strike or refusal to process, handle,
or otherwise work on the Employer ' s prefabricated
panels for the same object . A hearing was held at
Detroit , Michigan on May 5, 1969, before Hearing
Officer Melvin Pollack . All parties participated in
the hearing and were afforded full opportunity to be
heard , to examine and cross-examine witnesses, and
to adduce evidence on the issues . The Charging
Parties filed a brief which has been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated that the question of
jurisdiction should be determined by the Board on
the evidence adduced in Local 337, Carpenters etc.
(John Perrone d/b/a John Perrone Co.), Case
7-CC-492(l) and (2), heard by Trial Examiner
Owsley Vose on April 15 and 16, 1969. The record
in that proceeding reveals the following:
John Perrone Co., a sole proprietorship, whose
main office and principal place of business is located
at Walled Lake, Michigan, is engaged in the State
of Michigan in the construction industry as a
carpentry contractor. During the calendar year 1968,
the Company earned a gross revenue of
approximately $750,000 in the course of its business
operations. Perrone Co. is a member of the
Carpentry Contractors' Association of Detroit,
which bargains on behalf of its members with the
Detroit Carpenters' District Council. The members
of the Association purchase and receive in the
aggregate more than $50,000 worth of materials
from suppliers located outside the State of
Michigan, which are supplied directly to the
Association members' jobsites. We find that Perrone
Co. is engaged in commerce within the meaning of
the Act, and that it will effectuate the policies of the
Act to assert jurisdiction in this proceeding.
Carpentry Engineering, Inc., a Michigan
corporation with its principal office and place of
business located at 1947 Haggerty Road, Walled
Lake, Michigan, is engaged in the manufacture, sale
and distribution of wood products to commercial
and residential building contractors. During the
calendar year 1968, Carpentry Engineering, in the
course and conduct of its business operations, had a
gross revenue of approximately $2,000,000. During
the same period of time, Carpentry Engineering
purchased and received approximately $600,000
worth of lumber and related building supplies from
Haggerty Lumber Supply, Walled Lake, Michigan,
of which in excess of $50,000 worth of lumber was
purchased and received by Haggerty directly from
U. S. Plywood Co. and Simpson Lumber Co., both
located in Eureka, California. We find that
Carpentry Engineering, Inc., is engaged in
commerce within the meaning of the Act, and that it
will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
H. THE LABOR ORGANIZATIONS INVOLVED
'The charges were filed against Carpenters ' and Council as Joint
Respondents . Council is composed of representatives of 14 local unions,
including both Carpenters' and Millmen 's. Council carries on negotiations
for all member carpenter locals, including Carpenters' Local 337 Unless
otherwise specified , references hereinafter to Council shall also refer to
Carpenters' Local 337, and vice versa.
We find that Local 337, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, and
Carpenters ' District Council of Detroit , Wayne,
Oakland , Macomb , St. Clair , Monroe, and portions
of Sanilac and Livingston Counties are labor
organizations within the meaning of Section 2(5) of
179 NLRB No. 164
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. We make the same finding with respect to
Millmen 's Local 1452, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
III. THE DISPUTE
A. The Work at Issue
This proceeding arises out of a dispute over
whether prefabricated wall panels manufactured by
Carpentry Engineering Inc. for subsequent
installation at construction sites of Perrone Co.
should be constructed by employees represented by
Millmen 's Local 1452 or by workers represented by
Carpenters' Local 337.
B. Background and Facts of the Dispute
Carpentry Engineering , Inc., a general carpentry
contractor which supplies "packaged materials" -
labor and materials - to builders in southern
Michigan , began constructing prefabricated wall
panel units at its mill in late summer 1968. The job
was performed by employees represented by
Millmen's Local 1452. Carpentry Engineering is a
party to a contract with that Local through its
membership in the Metropolitan Detroit Millmen's
Association, which it joined in August 1968. The
Company has employed no carpenters at its Walled
Lake, Michigan location for about 2 years.
Consequently, it withdrew from membership in the
Michigan Carpentry Contractors' Association after
its affiliation with the Millmen's Association.
Carpentry Engineering supplied the prefabricated
panels to John Perrone Co., a carpentry labor
subcontractor, for installation at its jobsites. Perrone
Co. is a member of the Carpenter Contractors'
Association of Detroit, through which it has
recognized and contracted with Carpenters' as the
exclusive representative of its employees. Perrone
Co. employs oply carpenters.
John Perrone- owns 60 percent of the stock of
Carpentry Engineering and serves as its treasurer.
Carpentry Engineering deals frequently, although
not exclusively, with Perrone Co.
Carpentry Engineering 's contractual agreements
include the furnishing of carpentry labor, building
materials , and hardware to Michigan Consolidated
Homes, Inc., for the construction of "Elmwood No.
2", an urban renewal project in downtown Detroit.
Carpentry Engineering subcontracted the carpentry
services portion of the agreement to Perrone Co.,
and provided Perrone Co. with supplies and
materials for installation by Perrone's carpenters.
Perrone Co. began installing the prefabricated
wall panels constructed by Carpentry Engineering in
December 1968. The prefabricated panels are built
by millmen in the shop and delivered to the jobsite
for installation by carpenters. Earlier in 1968,
Perrone Co. carpenters had installed similar panels
built by companies located outside the State of
Michigan. Before the advent of prefabricated
paneling, Perrone Co.'s carpenters built wall panels
"stick by stick" at the jobsite.
On January 20, 1969, the Perrone Co. foreman at
the Elmwood project was informed by Local 337's
business agent that Perrone Co. would have to cease
installing prefabricated wall paneling. John Perrone
came to the project and was advised that safety
defects were the cause of the shutdown which
ensued. Perrone transferred his men to another task
for the remainder of the day. The next day,
Carpenters' business representative Powers came to
the jobsite at 9 a.m. and instructed the carpenters
on the project to cease work. The carpenters
promptly left. Perrone called Powers to discover the
reason for the shutdown and again was told that the
project was unsafe. Two days later, a meeting
attended by representatives of Perrone Co.,
Carpenters', Michigan Consolidated Homes,
Carpentry Engineering, and the Carpentry
Contractors' Association of Detroit was held. After
some discussion of safety factors, the conversation
turned to an allegation by Carpenters' that Perrone
Co. was violating its contract with the Carpenters'
District Council by installing prefabricated panels
rather than employing its own carpenters to build
panels on the job. Harrington, secretary-treasurer of
the Carpenters' District Council, indicated that the
only solution to the problem was to permit members
of Local 337 to work in the Carpentry Engineering
mill. The meeting did not solve the dispute. The
carpenters did not return to the Elmwood project. In
late January and early February, Carpenters' shut
down Perrone Co.'s operations on three other
projects. Willer Co., another carpentry contractor,
was hired to replace Perrone Co. at Elmwood. On
February 5, Willer's carpenters also left the job.
On February 12, a petition for a Section 10(1)
injunction against Local 337 and Council, based on
the alleged unlawful shutdown of carpentry labor
operations at the Elmwood project, was filed on
behalf of the Board in the U. S. District Court for
the Eastern District of Michigan, Southern Division.
An order to show cause was signed the same day.
On February 14, an ex parte 3-day temporary
restraining order was issued by the same court based
upon charges filed by the Willer Co. A further
temporary restraining order was issued on February
17 by agreement of the parties and without a
hearing. On February 19, an injunction against both
Respondents was entered by the District Court upon
consent.
On February 4, 1969, Perrone Co. filed a charge
against Local 337, alleging violation of Section
8(b)(4)(D). The Perrone Company, which sent its
carpenters to the Elmwood jobsite on February 13,
despite the fact that it had been relieved of its
contract, has not returned to the job since that date.
On February 19, 1969, Carpentry Engineering Inc.
filed 8(b)(4)(D) charges against both Respondents.
On the same date, Perrone Co. filed an amended
charge against both Respondents.
LOCAL 337, CARPENTERS 911
C. Contentions of the Parties
Carpentry Engineering has assigned the disputed
work to employees represented by Millmen's Local
1452. The Charging Parties assert that the disputed
assignment is covered by Carpentry Engineering's
contract with Millmen's. Perrone Co. further
contends that the construction of building
components is millwork rather than site work. It
argues that it is not economically feasible to
manufacture prefabricated wall panels in the mill at
carpenter's rates, and that it is not possible to
construct panels on the jobsite because of the
expense and the risk of pilferage.
Both Unions assert that John Perrone Co. and
Carpentry Engineering constitute a single employer.
Carpenters' contends that the work is covered by its
contract with John Perrone Co. Millmen's business
manager stated2 that its contract does not cover
construction of wall panels, which is not specifically
mentioned in the agreement. Both Unions agree that
historically, walls have been manufactured on
construction jobsites.
The parties agree that employees represented by
both Locals are competent to manufacture
prefabricated wall panels.
D. The Applicability of the Statute
Before the Board may proceed with a
Determination of the 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 Board may not determine the dispute under
Section 10(k) of the Act if it is shown that all
parties have agreed upon methods for voluntary
adjustment. The agreement between the Carpenter
Contractors' Association of Detroit and the
Carpenters' District Council, to which Perrone Co.
is a party, provides that jurisdictional disputes which
cannot be settled at the Local level are to be
referred to the National Joint Board for the
Settlement of Jurisdictional Disputes. The Council
cites this provision, arguing that the Board should
decline jurisdiction over the case pending Joint
Board determination. However, Carpentry
Engineering is not a party to any agreement
requiring such a submission . Neither the Council
nor Perrone Co. has referred the matter to the Joint
Board. We therefore find the evidence pertaining to
any alleged agreement upon methods for voluntary
adjustment of the dispute insufficient to warrant
deferring action on the charges.
Local 337 also asserted at the hearing that it does
not dispute the assignment of work to millmen, but
that its demands are limited to the payment of
carpenter's rates to whatever employees perform the
task. It therefore urged that the notice of hearing be
quashed.
The parties stipulated that the question of
reasonable cause should be determined by the Board
on the evidence adduced in John Perrone d/b/a
John Perrone Co., supra. The record in that case,
which was incorporated in the instant proceeding,
contains testimony of admissions to the effect that
the February shutdown resulted from the assignment
of the disputed work to millmen, and that the
shutdown would be continued indefinitely until the
task was assigned to Carpenters.
The Board is not charged with finding that a
violation did in fact occur, but only that reasonable
cause exists for finding such a violation. A conflict
in testimony does not prevent the Board from
proceeding with a determination of the dispute
under Section 10(k).3 Therefore, without ruling on
the credibility of the testimony at issue, we find that
such reasonable cause exists, and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
E. The 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 various relevant factors.
The Board has held that its determination in a
jurisdictional dispute is an act of judgment based
upon common sense and experience, reached by
balancing those factors involved in a particular case.4
The following factors are relevant in making a
Determination of the Dispute before us:
1. Skills and Training
Carpenter apprentices in the Detroit area undergo
a 4-year training course which prepares them to
perform all- aspects of carpentry. Millmen do not
have apprenticeship training. However, it appears
that the additional skills gained during carpentry
training are not essential for the construction of
prefabricated wall panels. This task is similar to
others traditionally performed by millmen, such as
the construction of trusses, frames, and stairs, and
involves the use of similar machinery. The Employer
characterized the task as "semi-skilled" and we so
find. Perrone testified that Millmen are sufficiently
skilled to perform the work, and that they have been
doing a satisfactory job. Carpenters' does not
dispute the competency of Millmen. The parties
This statement was made by Millmen's business manager on
cross-examination. Previously he had stated that he was not authorized by
Council to take a position on this issue As a member of Council,
Millmen 's was represented at the hearing by counsel for Respondents, and
did not present its own witnesses or arguments.
'Local Union No 334, Laborers' International Union of North
America , AFL-CIO (C H Heist Corp.), 175 NLRB No 103
'International Association of Machinists (J A Jones Construction Co
135 NLRB 1402.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have stipulated to the competency of Carpenters'.
2. Area and Industry Practice
Carpentry Engineering appears to be the first
member of the Metropolitan Detroit Millmen's
Association to undertake the construction of
prefabricated wall panels in the mill . In the past,
local carpenters have installed similar panels,
constructed by millmen employed by contractors in
Indiana and Ohio , at projects in the Detroit area.
Several contractors in southeast Michigan have paid
carpenters ' rates for similar work . Two contractors
testified at the hearing that they found it
economically unfeasible to continue such operations.
The Unions assert that historically , walls have
been manufactured at construction jobsites. It
appears , however , that other building components,
such as stairs, cabinets, roof trusses , and door
frames , which once were constructed at the jobsite,
are now built ` in the mills , and there is no evidence
tending to prove that wall panels should not also
follow the trend towards off-site construction.
3. Economic feasibility
The Employer testified that it was more
economical for him to employ Millmen to perform
the disputed work . This testimony was supported by
that of two contractors who had been employing
carpenters to perform the work . Irv Mark of Mark
Drywall Carpentry Company testified that he had
discontinued the operation because it was
unprofitable , and that a subsequent attempt to
prefabricate panels at the jobsite was also
unsuccessful. George Wolfe , of George Wolfe
Carpentry , Inc., testified that after 6 months, it
appeared to him that he could not continue
operations . As of the present date , Millmen's base
wages range between $3 . 29 and $4 . 35 per hour.
Journeymen carpenters earn a minimum base wage
of $6.67 per hour ; foremen and layout men receive
higher pay.
4. Collective -bargaining agreements
Carpentry Engineering applied for membership in
the Metropolitan Detroit Millmen ' s Association in
July 1968 , The membership became effective in
August of that year . Through its membership in the
Association, Carpentry Engineering became a party
to an existing contract with Millmen 's Local 1452,
although it employed no millmen until December
1968. Prior to that date , the employees at Carpentry
Engineering were classified as "experimental men"
and were members of neither Millmen's nor
Carpenters'.
The Millmen ' s contract contains no provision
specifying rates of pay for construction of
prefabricated wall panels. Millmen ' s states that the
contract is therefore not applicable to the disputed
work. However, construction of doors and stairs,
traditionally performed by Millmen , are similarly
not covered by specific contractual provisions, but
rather , apparently, are considered by Carpentry
Engineering and Millmen to fall within the residual
category covering "general millwork ." Construction
of prefabricated wall panels, which involves the use
of similar equipment and requires comparable skills,
would seem to fall within the same category.
Carpentry Engineering withdrew from
membership in the Detroit Carpentry Contractors'
Association in late 1968, although it retained its
membership in the Michigan Carpentry Contractors'
Association . The reason for the withdrawal was that
the company had employed no carpenters in the
five-county metropolitan area for over a year.
Although Carpentry Engineering did not inform the
District Council of its withdrawal, this was done by
an official of the Detroit Association.
Respondents argue that Carpentry Engineering
and John Perrone Co. constitute a single employer,
and consequently , that Perrone 's contract with
Carpenters', which predates Carpentry Engineering's
agreement with Millmen ' s, governs the assignment
of the disputed work. The single employer issue has
been litigated in a separate proceeding, Case
7-CC-492(l) and (2). We do not pass on it here.
Accepting that contention arguendo , it is not
dispositive of the case at bar. A determination that
two companies constitute a single employer within
the meaning of the secondary boycott provisions of
our Act affects neither their ability to function as
independent entities nor their capacity to perform
separate corporate acts. Carpentry Engineering and
John Perrone Co. perform related but nonetheless
distinct functions . Each has the capacity to contract
in its own name, and has done so . We are unwilling
to hold that Carpentry Engineering has a
contractual commitment to carpenters simply
because Perrone Co. does.
Carpenters' also argues , in effect, that Article 19
of Millmen ' s contract with Carpentry Engineering,
which provides that work done away from the
Employer' s premises shall be paid for at carpenters'
rates, is applicable to the construction of
prefabricated panels. However, as these panels are
built in the mill, the argument is not supported by
the terms of the agreement.
5. Employer ' s Past Practice
Carpentry Engineering has employed Millmen to
perform the disputed work at its Walled Lake
location since December 1968. While it employed
carpenters at an earlier date , it has not done so for
almost 2 years. Furthermore , Carpentry Engineering
has never employed carpenters to perform the
disputed work.
LOCAL 337, CARPENTERS
E. Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors
appearing in the record, we shall assign the work in
dispute to the Employer's employees represented by
Millmen's Local 1452. It is clear that millmen
possess the requisite skills for satisfactory
performace of the job. The testimony of the two
contractors who have hired carpenters to perform
the task, as well as that of John Perrone himself, is
that it would be economically unfeasible for the
Employer to assign the task to carpenters. In light
of that testimony, the apparent area practice of
awarding the work to carpenters, which is by no
means clearly established, is entitled to less than
conclusive weight. Carpentry Engineering's
agreement with Millmen's Local 1452 arguably
encompasses the disputed work. On the other hand,
Carpentry Engineering has no contract with
Carpenters'. Despite the close relationship between
Carpentry Engineering and Perrone Co., the latter's
contract with Carpenters' does not supersede the
former's agreement with Millmen's.
In making this determination, we are awarding
the disputed work to employees who are represented
by Local 1452, but not to Local 1452 or its
members.
In view of the above, we find that Carpenters
Local 337 was not and is not entitled by means
proscribed by Section 8(b)(4)(D) to force or require
the Employer to assign the construction of
prefabricated wall panels to its members rather than
to employees represented by Millmen's Local 1452.
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
913
case, the National Labor Relations Board makes the
following Determination of Dispute:
A. Employees of Carpentry Engineering Inc.
currently represented by Millmen ' s Local 1452,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, are entitled to perform the
following work:
Construction of prefabricated wall panels at the
Walled Lake location of Carpentry Engineering,
Inc.
B. Local 337, United Brotherhood of Carpenters
sand Joiners of America , AFL-CIO and Carpenters'
District Council of Detroit , Wayne , Oakland,
Macomb , St. Clair , Monroe, and portions of
Sanilac and Livingston Counties , AFL-CIO, are not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Carpentry Engineering
Inc. to assign such construction to Local 337
members or to employees whom it represents.
C. Within 10 days from the date of this Decision
and Determination of Dispute , Local 337 , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Carpenters ' District Council of
Detroit , Wayne, Oakland , Macomb, St. Clair,
Monroe , and portions of Sanilac and Livingston
Counties , AFL-CIO, shall notify the Regional
Director for Region 7, in writing, whether they will
refrain from forcing or requiring Carpentry
Engineering Inc., by means proscribed by Section
8(b)(4)(D ) of the Act, to assign the work in dispute
to employees represented by Local 337, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Carpenters ' District Council of
Detroit , Wayne, Oakland, Macomb , St. Clair,
Monroe, and portions of Sanilac and Livingston
Counties , AFL-CIO, rather than to employees who
are represented by Millmen ' s Local 1452 , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO.