Local 517, Carpenters

National Labor Relations Board - Board Decisions

Feb 9, 1973

201 N.L.R.B. 746 (N.L.R.B. 1973)

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 517, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and Soule Glass &
Paint Co. and Local 1516, International Brother-
hood of Painters and Allied Trades, AFL-CIO.
Case 1-CD-334
February 9, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing charges filed by Soule Glass & Paint Co ., herein
called Employer , alleging that Local No . 517, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein called Respondent, has violated
Section 8(b)(4)(d) of the Act. A hearing was held
before Hearing Officer Arnold M. Marrow on
January 4, 1973. The Employer , Respondent, and
Local 1516, International Brotherhood of Painters
and Allied Trades , AFL-CIO, herein called Glaziers,
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.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a Maine corporation with its principal
office in Portland, is engaged in the installation,
repair, and servicing of windows, glass doors, and
related materials. The Employer annually purchases
materials from outside the State having a value in
excess of $50,000. Accordingly, we find that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Respondent and the Glaziers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The Employer has a written contract with Stewart
& Williams , Inc., a general contractor in the State of
Maine , to install "all aluminum doors, windows and
all glass and glazing and all caulking of all windows
and entrance openings" at the Deering Pavilion, a
12-story apartment building being constructed on
Forest Avenue in Portland , Maine . The Employer
has employees represented by the Glaziers and
utilizes these employees on a regular basis, whereas
the employees represented by the Respondent were
working on the site for the general contractor,
Stewart & Williams.
The record shows that at some unspecified date
John Bowman , business agent for the Respondent,
made a demand on Donald Huff, of Stewart &
Williams, and Charles Soule, of the Employer, that
the work of installing preglazed windows above the
first floor be assigned to employees represented by
his local . Stewart & Williams ordered the installation
of the windows to stop while attempts were made to
resolve the dispute. When Soule continued the work
using employees represented by the Glaziers, the
Respondent, on November 22, 1972, struck the job.
B. The Work in Dispute
The work in dispute involves the installation of all
aluminum doors , windows, and all glass and glazing
and all caulking of all windows and entrance
openings above the first floor at the Deering
Pavilion.
C. Contentions of the Parties
The Employer contends that the work should be
left as assigned to glaziers , that the assignment is
consistent with a previous certification by the Board
and the Employer's contract with the Glaziers, that
the assignment follows the Employer 's and area
practice, and that the work in dispute is highly skilled
and requires the knowledge and expertise possessed
by glaziers.
The Glaziers position is the same as that taken by
the Employer.
The Respondent takes the position that its mem-
bers are equally qualified and have performed this
work in the past.
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
201 NLRB No. 115
LOCAL 517, CARPENTERS
that there is no agreed-upon method for the
voluntary adjustment of the dispute.
As noted, the record discloses that Respondent's
Business Agent Bowman made various demands that
the Employer assign the work in dispute to carpen-
ters. In addition, Bowman admitted that the carpen-
ters left the jobsite in protest over the Employer's
assignment. Accordingly, and without ruling on the
credibility of the testimony in issue, we are satisfied
that there is reasonable cause to believe a violation of
Section 8(b)(4)(D) did occur. Furthermore, the
record does not disclose any agreed-upon method for
the voluntary adjustment of this dispute. Therefore,
we find that this dispute is properly before the Board
for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors.
1. Certification and collective-bargaining
agreements
The record disclosed that the Glaziers were
certified for a unit of all employees on January 6,
1969. In addition the Glaziers, unlike the Carpenters,
has a contract with the Employer which states that
the "jurisdiction of work for employees represented
by the Union shall be all work properly classed as
glazier's work and requiring glazier's tools and has
heretofore been awarded as glazier's work by the
Building and Construction Trades Department
AFL-CIO and as may from time to time hereafter be
so awarded. Nothing in this paragraph is to be
construed as taking away work customarily and
historically done by glaziers in the State of Maine."
We therefore find that both the certification and the
Employer's contract with the Glaziers favors the
Employer's assignment.
2. Employer and area practice
The facts disclose that with few exceptions the
Employer assigns the work in dispute to glaziers and
that other employers in the area follow the same
assignment for this work. While there was some
evidence that carpenters performed the work at a
project in Augusta, the record discloses that the
windows in that project were not preglazed as in the
instant case. The employer and area practice,
therefore, favor the Employer's assignment.
3. Skills and efficiency of operation
747
The Employer testified that glaziers possess the
required knowledge and skill which is necessary to
perform the work in dispute. In fact, the apprentice-
ship program for glaziers involves, in part, this type
of work. The Employer also contends that the use of
glaziers is more efficient since the use of carpenters
would require a full-time supervisor on the site at all
times. On the other hand, the record also shows that
carpenters have performed similar work in the past
and that they possess the skill necessary to do the
work in dispute. We therefore find that the factors of
skill and efficiency are not useful in making our
determination herein.
Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by the Glaziers are entitled to perform the
work in dispute. This assignment is consistent with
the initial assignment , the certification , the contract,
and the Employer's and area practice. In making this
determination , we are awarding the work in question
to employees employed by the Employer who are
represented by the Glaziers, but not to that Union or
its members. The present determination is limited to
the particular controversies which gave rise to this
proceeding.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Soule Glass & Paint Co., who are
currently represented by Local 1516, International
Brotherhood of Painters & Allied Trades, AFL-CIO,
are entitled to do the installation of all aluminum
doors, windows, and all glass and glazing and all
caulking of all windows and entrance openings above
the first floor of the Deering Pavilion in Portland,
Maine.
2. Local No. 517, United Brotherhood of Carpen-
ters & Joiners of America, AFL-CIO, is not entitled
by means proscribed by Section 8(b)(4)(D) of the Act
to force or require Soule Glass & Paint Co., to assign
the above work to its members for employees whom
it represents.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Within 10 days from the date of this Decision 8(b)(4)(D) of the Act, to assign the work in dispute to
and Determination of Dispute, the labor organiza- its members or employees who it represents rather
tion listed in the preceding paragraph shall notify the than to employees of Soule Glass & Paint Co.,
Regional Director for Region 1, in writing , whether represented by Local 1516 , International Brother-
or not it will refrain from forcing or requiring Soule hood of Painters & Allied Trades, AFL-CIO.
Glass & Paint Co., by means proscribed by Section