Metallic Lathers Union Local 46

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 557 (N.L.R.B. 1975)

METALLIC LATHERS UNION LOCAL 46 557
Metallic Lathers Union of New York and Vicinity, Lo-
cal 46, Wood, Wire and Metal Lathers International
Union, AFL-CIO and Star Lathing and Furring
Corp. and Interstate Lath , Plaster and Dry Wall
Corp. and District Council of New York and Vicini-
ty of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Cases 2-CD-470
and 2-CD-471
July 28, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Star Lathing and Furring Corp.,
hereafter Star, and by Interstate Lath, Plaster and
Dry Wall Corp., hereafter Interstate, alleging a viola-
tion of Section 8(b)(4)(D) by Metallic Lathers Union
of New York and Vicinity, Local 46, Wood, Wire
and Metal Lathers International Union, AFL-CIO,
hereafter the Lathers. The charge alleges , in sub-
stance, that the Lathers threatened to picket, and did
picket, Interstate with an object of forcing or requir-
ing them to assign the installation of Imperial dry-
wall to its members rather than to members of the
District Council of New York and Vicinity of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, hereafter the Carpenters. Pur-
suant to notice, a hearing was held on June 20-21,
August 13-16, September 10-11 and 22-25, Novem-
ber 14-15, and December 2, 1974, and January 14,
1975, at New York, New York, before Hearing Offi-
cer Joel Spivak. All of the parties appeared and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses , and to adduce evidence
bearing on the issues. The Lathers, the Carpenters,
Star, and Interstate filed briefs which have been duly
considered by the Board.'
Pursuant 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 here-
by affirmed.
' The Hearing Officer granted a motion to intervene by the Metropolitan
Drywall Association of New York City and Vicinity , hereafter the Interve-
nor Association , at the first day of the hearing . The Intervenor Association
has filed a brief which includes, inter alia, a request for a broad order in this
case.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated that Star is a New York cor-
poration with its offices in Bronx, New York, and
that it is engaged in the business of lathing in the
construction industry; and that Interstate also is a
New York corporation with its offices in Queens,
New York, and that it is engaged in the business of
installing lath, plaster, and drywall in the construc-
tion industry. The parties further stipulated that, in
the course and conduct of their respective businesses,
Star and Interstate each annually receives gross reve-
nues in excess of $500,000 and that each annually
purchases goods directly from outside the State of
New York which are valued in excess of $50,000.
We find that Star and Interstate are engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated , and we find, that the Lath-
ers and the Carpenters are labor organizations within
the meaning of Section 2(5) of the Act.
A. Facts
Interstate is engaged in the business of installing
lath, plaster, and drywall in the construction industry
in the New York City area. At the time the dispute
arose herein, Interstate was installing Imperial board
at a jobsite on 22nd Street in New York City. Star,
which has a collective-bargaining agreement with the
Lathers, was not involved in the disputed work at the
22nd Street site. Star and Interstate have common
officers.
The disputed work involves the installation of Im-
perial board. The record shows that metal floor and
ceiling runners (the track) and metal studs are erect-
ed to receive the Imperial board which is secured by
screws, nails, or an adhesive. The Imperial board re-
ceives a veneer plaster finish, applied by plasterers.
The application of the veneer plaster finish is not
part of the disputed work here.
The record shows that Interstate had assigned the
disputed work at the 22nd Street site to employees
represented by Carpenters during the second week of
April 1974.2 On April 29, the Lathers business agent,
Peter McGovern, telephoned Salvatore Magistro,
Interstate's secretary, and asked him whether Inter-
2 All dates hereafter are 1974.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state was using employees represented by the Car-
penters to install Imperial board at the 22nd Street
site . Magistro answered "yes" and McGovern re-
sponded, "Then I will have to do what I have to do."
The next day and for the succeeding 2 days the Lath-
ers picketed the 22nd Street site . McGovern admitted
at the hearing that the picketing was precipitated by
Interstate's assignment of the disputed work to em-
ployees represented by the Carpenters. Thereafter,
McGovern also sent telegrams to Lathers foremen
working for Star (Magistro is an officer of both Star
and Interstate) directing them no longer to permit
the transfer of employees from job to job, a move
intended to put pressure on Interstate to change the
assignment of the disputed work . The record further
shows that the Lathers made demands for , and en-
gaged in other work stoppages related to obtaining,
Imperial board work for its members both prior to
and after the 22nd Street incident.
B. The Work in Dispute
As described in the notice of hearing issued by the
Regional Director on May 28, 1974, the work in dis-
pute involves "the work of installing Imperial dry
wall by Interstate Lath, Plaster and Drywall Corp."
More specifically , this work may be described as the
installation of metal floor and ceiling runners, metal
studs , and gypsum board to which is applied a veneer
plaster finish . The particular gypsum board in the
instant dispute is one manufactured by U.S. Gypsum
Company and carries the brand name "Imperial."
C. Contentions of the Parties
The Lathers contends that there is an agreed-upon
method binding on all the parties for the resolution
of the dispute. Accordingly , it urges that the dispute
is not properly before the Board and that the instant
proceeding should be quashed . Additionally, the
Lathers claims , in any event , that its members are
entitled to the work in dispute by reason of previous
assignments by Interstate , area practice , economy
and efficiency of operations , and decisions of tribu-
nals awarding it the type of work in dispute here. The
Lathers further contends that the installation of Im-
perial board is similar to the installation of lath in
that both receive a plaster finish , and different from
the installation of regular drywall which it concedes
is work performed by carpenters in New York City.
Interstate and the Carpenters take the position
that Interstate 's assignment of the disputed work was
justified by Interstate 's collective-bargaining agree-
ment with the Carpenters , area practice , as well as
skills possessed by the carpenters , and economy and
efficiency of operations . Interstate denies that it has
a contract with the Lathers or that it is bound by the
New York plan. Interstate and the Carpenters fur-
ther contend that the only difference between the in-
stallation of Imperial board and the installation of
regular drywall is the finish which is applied after the
walls are erected . In this connection, Interstate and
the Carpenters point out that the finish is applied by
plasterers and not by members of the Lathers or Car-
penters.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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
and that the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
The record shows that on April 29 the Lathers
business agent , McGovern , asked Interstate's secre-
tary, Magistro , whether Interstate was using employ-
ees represented by the Carpenters to do the Imperial
board work at the 22nd Street site . Magistro an-
swered "yes" and McGovern responded, "Then I will
have to do what I have to do." The next day and for
the succeeding 2 days the Lathers picketed the 22nd
Street site . McGovern admitted at the hearing that
the picketing was precipitated by Interstate 's assign-
ment of the disputed work to employees represented
by the Carpenters rather than to employees repre-
sented by the Lathers. The record also contains num-
erous other instances where the Lathers sought to
effect a change in the assignment of the installation
of Imperial board work . On the basis of the foregoing
and the entire record, we find that an object of the
Lathers threats and picketing was to force or require
Interstate to assign the disputed work to employees
represented by the Lathers.
Further, we do not find merit in the Lathers con-
tention that all the parties are bound by the same
voluntary method for resolving the dispute. The rec-
ord shows that Interstate was not a signatory to an
agreement with the Lathers and there is no showing
that Interstate has voluntarily agreed to be bound by
the New York plan, as the Lathers claims. Nor do we
find that Interstate is bound by Star 's contract with
the Lathers . In this connection , we note that Salva-
tore Magistro , an officer of both Star and Interstate,
signed a contract on behalf of Star with the Lathers,
but told the Lathers that they would have to contact
Louis DeBono about signing a contract on behalf of
Interstate with the Lathers.
Accordingly, we conclude that on the basis of the
entire record there is reasonable cause to believe a
METALLIC LATHERS UNION LOCAL 46 559
violation of Section 8(b)(4)(D) has occurred and that
at the time of the instant dispute there did not exist
any agreed-upon or approved method for resolving
the dispute to which all parties are bound. Therefore,
the matter is properly before the Board for determi-
nation.
balance we do not find the work related to the instal-
lation of Imperial board to be so closely related to
the traditional work jurisdiction of either of the two
competing groups as to be a factor in favoring the
assignment of the work to one group as opposed to
the other.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work af-
ter giving due consideration to and balancing all rele-
vant factors .' The following factors are relevant in
making a determination of the dispute before us.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified as collective-bargaining represen-
tative for a unit of the Employer's employees.
The record shows that Interstate signed a collec-
tive-bargaining agreement with the Carpenters on
April 6, 1973, and that this agreement, current at the
time of the dispute here, provides, inter alia, that em-
ployees represented by the Carpenters will perform:
All work in connection with the installation and
erection of gypsum wallboard to receive a ve-
neer coat of plaster or lath to receive traditional
plaster if such materials are to be secured to
nailable or screwable metal studs.
Contrary to the contention of the Lathers, the rec-
ord shows that Interstate was not a signatory to an
agreement with the Lathers.
We find that Interstate's contract with the Carpen-
ters supports the latter's claim for the disputed work.
2. Similarity of work involved to work regularly
performed by claiming employees
The record shows that the work of installing Impe-
rial board is almost identical to that regularly per-
formed by the carpenters in installing drywall. On
the other hand, the record also shows that this work
is also similar to the work regularly performed by
Lathers in installing metal lathe. Moreover, in com-
paring the function of Imperial board in relation to
what it replaces or acts as a substitute for, it would
appear that Imperial board is used more often to re-
place or substitute for metal lathe and other lathing
alternatives than it is used in place of drywall, which
arguably itself is a lathing substitute. However, on
3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A
Jones Construction Company). 135 NLRB 1402 (1962).
3. Assignment, preference, and efficiency of
operations
Under Interstate's existing assignment, the em-
ployees represented by the Carpenters who are per-
forming the disputed work also are available to per-
form regular drywall work, as well as related tasks
such as the installation of door bucks, an integral
part of any room. On the other hand, it would appear
that Interstate would lose this flexibility if the disput-
ed work were assigned to employees represented by
the Lathers. We find this factor favors assignment to
the employees represented by the Carpenters.
4. Skills
The employees represented by the Carpenters have
demonstrated to the satisfaction of Interstate that
they have the knowledge and skill to perform the
disputed work. It appears from the record that em-
ployees represented by the Lathers also possess the
skills necessary to perform the disputed work. Hence,
we conclude that this factor favors neither party.
5. Interstate 's and area practice
The record shows that Interstate used employees
represented by the Lathers to perform at least three
jobs involving the installation of Imperial board
prior to the assignment of the disputed work here to
employees represented by the Carpenters. Interstate
points out that these three jobs involved a minimal
amount of Imperial board work and that they oc-
curred shortly after it commenced operations and
prior to the time that it had a regular crew of carpen-
ters available . In each instance , the lathers used by
Interstate were transferred from Star and the lathers
were already on the jobsite . The first major job in-
volving the installation of Imperial board undertaken
by Interstate was at the 22nd Street site . Interstate
assigned this Imperial board work to employees rep-
resented by the Carpenters and has assigned all other
Imperial board work since then to employees repre-
sented by the Carpenters.
Interstate , the Lathers , and the Carpenters each
introduced evidence to support its respective conten-
tions relative to the assignment of Imperial board
work in the New York City area. Much of this evi-
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence involved work outside the City of New York.
We find that this evidence does not establish any
clear and consistent practice which would assist us in
making our determination.
6. Awards and agreements
We can accord no weight to the decision under the
New York plan, relied on by the Lathers, in view of
the decision by the Impartial Disputes Board that the
so-called "Status quo" agreement between the Car-
penters and Lathers Internationals ousted local bod-
ies, such as BETA under the New York plan, from
deciding disputes involving the type of work involved
here.
Conclusions
Having considered all the pertinent factors herein,
we conclude that the employees represented by the
Carpenters are entitled to perform the work in dis-
pute. In making this determination, we are assigning
the disputed work to the employees represented by
the Carpenters, but not to that Union or its members.
Our present determination is limited to the particular
controversy which gave rise to this proceeding.'
4 Although the Lathers are insistent that the type of work involved herein
should be awarded to employees it represents , and it may continue to at-
tempt to obtain such work in the future , we do not believe that the evidence
presented in this proceeding is sufficient to show that this Union has a
proclivity to violate Sec. 8 (b)(4XD) of the Act in order to enforce such
demands . We therefore limit the scope of the award to the situs involved in
the instant dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings, the National Labor Relations
Board hereby makes the following Determination of
Dispute:
1. The employees represented by District Council
of New York and Vicinity of the United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, are entitled to perform the installation of metal
floor and ceiling runners, metal studs, and gypsum
board to which is applied a veneer plaster finish, at
the jobsite on 22nd Street in New York City.
2. Metallic Lathers Union of New York and Vi-
cinity, Local 46, Wood, Wire and Metal Lathers In-
ternational Union, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require Interstate Lath, Plaster and Dry
Wall Corp. to assign such work exclusively to indi-
viduals represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Metallic Lathers
Union of New York and Vicinity, Local 46, Wood,
Wire and Metal Lathers International Union, AFL-
CIO, shall notify the Regional Director for Region 2,
in writing, whether or not it will refrain from forcing
or requiring Interstate Lath, Plaster and Dry Wall
Corp., by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the work in dispute in a manner
inconsistent with the above determination.