Orange County Dist. Council of Carpenters

National Labor Relations Board - Board Decisions

Mar 30, 1971

189 N.L.R.B. 438 (N.L.R.B. 1971)

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orange County District Council of Carpenters,
AFL-CIO' and Martin Hageland Construction,
Inc. and International Union of Operating Engi-
neers, Local Union No. 12, AFL-CIO.2 Case
21-CD-276
March 30, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Martin Hageland Construction, Inc.,
hereinafter referred to as Hageland, alleging that the
Carpenters violated Section 8(b)(4)(D) of the Act.
Pursuant to notice, a hearing was held before Hearing
Officer James R. Hemingway on September 17, 1970.
All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to
adduce evidence bearing upon the issues. Thereafter,
Respondent Carpenters filed a brief.
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 Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.3 The Board has considered the brief of the
Carpenters and the entire record in this case and
makes the following findings:
1. THE BUSINESS OF EMPLOYER
Martin Hageland Construction, Inc., the Employ-
er, is engaged in the business of framing construction
within the construction industry with its headquar-
ters in Santa Ana, California. All parties herein
stipulated that the Employer was an employer within
the meaning of Section 2(2), (6), and (7) of the Act,
and that in the course and conduct of its business
during the 12 months preceding the hearing, the
Employer purchased and received building materials
in excess of $50,000, from suppliers within the State
' Hereinafter referred to as Carpenters
2 Hereinafter referred to as Local 12
3 Local 12 at the start of the hearing moved to dismiss these proceedings
on the ground that the Employer was not a necessary party to a settlement
of the dispute The Hearing Officer's denial of this motion was proper and
we hereby affirm his denial of the motion
Local 12, in seeking dismissal , relied upon Plasterers Local 79
(Southwestern Construction Co) v N L R B, 440 F 2d 171 (C A D C) In
our opinion , that decision is clearly inapplicable to the facts in the instant
case Nonetheless , as we previously stated in Lathers Union Local 104
(Associated General Contractors of America, Inc, etc (The Blaine Patty
Company)), 186 NLRB No 70, we adhere to our longstanding and
of California, who, in turn, purchased and received
these building materials from sources directly with-
out the State of California.
On the basis of these stipulated facts, we find that
the Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Carpenters and Local 12 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Work in
Dispute
The dispute in the instant case concerns the
question as to whether carpenters or operating
engineers should have been assigned by the Employ-
er to operate a piece of equipment used in framing
construction work known as the Pettibone forklift or
Pettibone high lift.
This piece of mobile equipment, hereinafter re-
ferred to as "Pettibone," is powered either by a diesel
or gasoline power unit, has no fork as does a forklift,
but rather has a large power-operated arm-like
extension with a platform at the end which can be
raised and lowered to place the material which is
carried on such platform. In the instant case it was
used to transport materials used by the Employer in
his framing construction work which is essentially
carpentry work.4
The Employer at the time this dispute arose was
engaged in the framing construction work on a low-
level apartment building in Tustin, Orange County,
California. At the start of the construction the
Employer assigned the operation of the Pettibone to
one of its carpenters, a member of the District
Council.
On or about April 2, 1970, Vinson C. Purvis,
business agent for Local 12, gave a "citation" to the
Employer which included a demand that the Em-
ployer pay to Local 12 the equivalent of the daily
wage paid an operating engineer on a framing
construction job in Orange County which Hageland
consistent position that Section 10(k) must be interpreted to mean that the
employer controlling the work assignment in addition to rival unions or
groups of employers involved comprise the parties to such dispute and all
must approve and enter into a voluntary settlement procedure in order to
preclude a hearing and determination pursuant to Section 10(k) of the Act.
4 This type of equipment was first introduced for use in the construction
industry in or about 1960 or 1961 It is used most generally by building
contractors or subcontractors doing framing construction work in
connection with homes and up to three-story apartments
This equipment was designated by the parties at the hearing as a
"Pettibone forklift" but the manufacturer 's designation is "Pettibone-High
Lift "
189 NLRB No. 62
ORANGE COUNTY DIST COUNCIL OF CARPENTERS
had started 2 to 3 weeks earlier . This demand by
Local 12 was predicated on an alleged violation of
the Employer 's contract with Local 12 by reason of
the Employer 's assignment of the operation of the
Pettibone to Carpenters.5
Hageland first adopted the Pettibone for use on its
framing construction in or about 1964 and has used
it consistently since that time in its frame construc-
tion work . It also has consistently used carpenters as
operators of the Pettibone at all times with the one
exception previously noted. This practice of the
Employer in the use of carpenters to operate the
Pettibone was pursuant to its longstanding collective-
bargaining agreement with the Carpenters.
Shortly after the demand made by Local 12, the
Employer notified the Carpenters that , in view of the
demand of Local 12, it would start using members of
Local 12 to operate the Pettibone . The Carpenters
then informed the Employer that if this work was
reassigned the carpenters would walk out on strike.
The Employer then filed its charge against the
Carpenters alleging a violation of Section
8(b)(4)(D).6
B. The Contentions of the Parties
1. The Employer ( Charging Party) and Carpen-
ters Hageland and the Carpenters contend that the
work here in dispute properly belongs to the
Carpenters . They argue that the operation of the
Pettibone has been historically the work of Carpen-
ters since its introduction in 1961 or 1962 and has
been assigned by the majority of the framing
subcontractors to members of the Carpenters in
Orange County, California
On the merits the Employer prefers that the work
in question be assigned to the Carpenters, members
of the Orange County District Council of of
Carpenters . The Employer, at all times since it
adopted the use of the Pettibone in 1964, has
pursuant to its collective -bargaining agreement with
the Carpenters , with but the one exception previously
noted, employed carpenters to operate the Pettibone.
Further , the Employer justifies its assignment on the
5 Hageland in October 1969, while acting as a framing subcontractor for
a general contractor on an apartment project in Orange County, California,
signed a short-form agreement with Local 12 This action on part of
Hageland was brought about by the fact that Local 12 had gone to the
general contractor and demanded the work The general contractor's
superintendent , fearing that a work stoppage might ensue if Local 12
members were not used , prevailed upon Hageland to agree to use operating
engineers on that job Hageland did sign on October 21, 1969, a
supplemental agreement to the existing Master Labor Agreement between
Local 12 and Southern California General Contractors , and used operating
engineers , members of Local 12, on that one job with very unsatisfactory
results
B It should be noted that no Section 10(1) proceedings were initiated in
the instant proceedings Local 12 agreed to cease issuing "citations" until
this matter was settled , presumably as Local 12's business agent testified,
"until such time as something like this [ Board preceedings ] came up where
we could get the answers "
439
basis of relative skills, economy, and efficiency of
operation, and the maintenance of a stable and
effective work force. The Carpenters fully concur
with the Employer's position in all respects.
2. Local 12, Operating Engineers
The Operating Engineers contend that by virtue of
the terms of a collective-bargaining agreement with
the Employer entered into on October 21, 1969,
which was still in effect at the time of the hearing
herein, the work in dispute should be assigned to the
Operating Engineers. Local 12 further argued at the
hearing that since the Employer signed two collec-
tive-bargaining agreements, both covering the disput-
ed work, and that since the labor orgainzations
involved herein have a method for settling the
dispute, without the participation of the Employer,
the matter is not one properly for Board action, and
on that basis moved for dismissal of this proceeding.?
C. Applicability of the Statute
Before the Board proceeds with a determination of
a 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
record shows, and Local 12 does not deny, that on
March 3 and 4, 1970, it served upon the Employer
"citations" wherein it demanded that the Employer
make payment to the Operating Engineers Trust
Fund of an operating engineer's day's wages for
every day worked by a carpenter. This claim and
demand was reiterated at the hearing by Local 12. In
our opinion this demand by Local 12, by its
insistence that the work to which the carpenters had
been assigned, and were being paid for, which would
require that operating engineers also be paid for the
same work without performing any of such work,
suffices to create ajurisdictional dispute.8 The record
also discloses that when the Employer approached
the Carpenters and informed them of Local 12's
demand the Carpenters, who had about 55 members
employed on the project in question, threatened to
"pull all the carpenters off the job" if the work in
7 Section 10(k) requires , inter a/a, that "within ten days after notice that
such [a] charge has been filed , the parties submit to the Board
satisfactory evidence that they have agreed upon methods for the
voluntary adjustment of the dispute upon such voluntary adjustment
of the dispute , such charge shall be dismissed " The only notice Local 12
ever sent to the Board was a letter from its counsel dated July 30, 1970,
over 3 months after the filing of the charges herein , in which it was alleged
that [since ] the two unions and the Employer had agreed upon "a
voluntary method for the settlement of their dispute , there should not be a
10(k) hearing " In view of the failure of Local 12 or any of the parties to
submit at any time satisfactory evidence that the two unions and the
Employer had an agreed -upon voluntary method for the settlement of their
dispute , we find the instant matter is properly before us Accordingly,
Local 12's motion to quash is hereby denied
8 NLRB v Local 1291, I LA, 368 F 2d 107 (C A 3), enfg 152 NLRB
676, cert denied 386 U S 1033
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute was assigned to members of Local 12.
Accordingly, we conclude that, on the basis of the
entire record, 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.9
D. 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 the various relevant factors.io
Pursuant to this mandate, the Board in the J. A
Jones caseli stated that it would thenceforth deter-
mine the proper assignment of disputed work only
after taking into account and balancing all relevant
factors. The following factors are asserted in support
of the claims of the parties herein.
1. Collective-bargaining agreements
The current contract between the Employer and
the Carpenters is what is known as a Carpenters
short-form agreement which incorporates by refer-
ence the terms of the Master Labor Agreement for
Southern California,12 with several exceptions. These
latter exceptions in the short-form agreements, which
are executed by contractors who are not members of
the signatory employer associations, specifically
exclude the dispute settlement procedure which is
contained in the Master Labor Agreement.
The Employer on October 21, 1969, signed an
agreement with Local 12 which agreement, by its
terms, incorporates the terms and conditions of the
collective-bargaining agreement known as the Mas-
ter Labor Agreement between Southern California
General Contractors and International Union of
Operating Engineers, Local 12, executed on July 1,
1969, with an expiration date of July 1, 1974. This
contract was entered into by the Employer while
acting as a subcontractor on an apartment building
project and was adhered to by the Employer only on
this one project. It appears that the Employer started
such project using carpenters to operate the Petti-
bone as it had done since 1964 when it first acquired
this type of equipment. Carpenters operated the
9 See also In 7, supra
10 N L R B v Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting System), 364 U S 573
11 J A Jones Construction Company, 135 NLRB 1402
12 This Master Agreement which is known as Carpenters Eleven
Southern Counties [of California [ Agreement covering all types of
carpenters ' work was executed between contractor groups and the United
Brotherhood of Carpenters and Joiners of America for its affiliated District
Councils and Local Unions in such 11-county area , including Orange
County This agreement was executed by the parties on May 1, 1962, and
has been amended at various times thereafter The last amendment was on
December 23, 1969 , with the expiration date of June 15, 1973
13 Although the type of Pettibone used by the Employer was first
introduced for use in the framing construction industry in or about 1960 or
1961 and adopted for use by numerous framing contractors in Orange
Pettibone from the start of the work by the Employer
and did so for a period of 2 to 3 weeks. A
representative of Local 12 subsequently appeared at
the jobsite and demanded that the operation of the
Pettibone be performed by members of Local 12.
The general contractor's superintendent, fearing that
a work stoppage might result if Local 12's demand
was not met, prevailed upon the Employer to use
operating engineers to operate the Pettibone on this
particular project.13 The Employer alleges that in
addition to the pressure from its general contractor
to avoid a work stoppage it agreed to use operating
engineers to operate the Pettibone if Local 12 could
furnish competent operators. Upon assurance from
Local 12 that it had competent operators for this
equipment the Employer signed the Local 12
agreement. The Employer alleges that during the
time it used operating engineers on this single project
its experience was very unsatisfactory because of the
operating engineers members' unfamiliarity with
carpentry work in framing construction. As a result
the Employer returned after completion of such
project to the use of the carpenters, as it had for over
5 prior years, on the Pettibone.
It is also clear from the record that even though the
collective-bargaining agreement the Employer signed
with Local 12 contains provisions for the settlement
of jurisdictional disputes, Local 12 never took any
action to invoke such provisions. Accordingly, this is
not a factor in the instant proceeding.
In view of all the circumstances and the "area
practice," discussed infra, which we deem relevant to
this dispute, we do not find that the collective-
bargaining agreement between the Employer and
Local 12 is controlling.
2. Company and industry practices
The Pettibone was primarily built for use in the
framing phase in home construction and similar type
of construction such as low-level type apartments.
The record discloses that Orange County framing
contractors started adopting the Pettibone for use in
home construction right after its introduction in or
about 1960 or 1961. The Employer began to use the
County, there never was any serious attempt on the part of Local 12 to
claim this type of work for its members until about 1968 or 1969 It is to be
noted that while Local 12's agreements claim jurisdiction over the
operation of forklifts the Pettibone is not actually a forklift. While it has a
power unit and requires an operator , it has attached to the power unit a
lifting arm with a wide platform attached at the end of the arm on which
the material , such as plywood, joints, trusses , lumber, and like material
used in framing , is placed the arm and platform can be raised to a height
of approximately 20 feet and extended horizontally about 16 feet In fact
the operator disburses the material and lines out the work in advance of
the actual framing construction by carpenters In addition, the carpenter
operator at times does carpentry work with and on the materials he has
unloaded There was some evidence that some Pettibones have a boom
attachment The operation of this type of equipment is not under
consideration in this proceeding
ORANGE COUNTY DIST. COUNCIL OF CARPENTERS
Pettibone in 1964. The Employer and the majority of
framing contractors have used carpenters to operate
the Pettibone from the time of its introduction up to
the present time.14 There does not appear to have
been any serious objection to the use of Carpenters
on the Pettibone until 1968 when the Operating
Engineers attempted to assert jurisdiction for its its
members as operators for the Pettibone. Local 12's
claim to jurisdiction is based upon the fact that its
collective-bargaining agreement with the contractors
covers "forklifts." Technically the Pettibone, as
previously stated, is not a forklift, although some-
what similar in operation; rather it is a tool
specifically designed for use in the framing construc-
tion industry. It is clear from the record that a
majority of framing construction contractors in
Orange County have employed carpenters to operate
the Pettibone. In view of these considerations, we
find that company and industry practices favor the
Carpenters.
3. Relative skills, economy, and efficiency of
operations
The Pettibone has been used as a tool by the
framing construction industry in the building of
homes, walkup or garden type apartments and in
some instances where adaptable on one- and two-
story commercial building construction. This ma-
chine has been operated, when used by a framing
construction contractor, almost exclusively by Car-
penters. The carpenter operating the Pettibone in a
production framing operation disburses the materials
and lines out the work in advance of the work to be
performed by the other carpenters. In other words,
the operator is a keyman in production. In addition
the carpenter-operator often works off the lift itself
to perform carpentry work on the materials he has
lifted into position. The carpenter-operator is also
required to have a thorough knowledge of the
materials to be used in framing construction, pick up
such materials when required, and place the materi-
als at the proper place and sequence on the framing
project. Also, when the Pettibone is not in operation
the carpenter-operator performs regular carpentry
work on the project. While it is not disputed that
Operating Engineers after a short training period
could operate the Pettibone, it is apparent that it
would take a considerable amount of time for an
opeating engineer to develop the skill, precision, and
knowledge of materials, and to acquire the skill a
carpenter has acquired, over the years, in the exercise
of his trade. Even though an operating engineer after
14 The Employer testified that an attempt to use members of Local 12
was made only on one project with very unsatisfactory results After this
the Employer, as had been its prior practice, reverted to the use of
carpenters to operate the Pettibone
441
long training might master a knowledge of materials
and their placement, he would only perform the
pickup and placement of materials with the result of
increased man-hours, lost man-hours, and higher
overall costs, and he would be idle, for which time he
would be paid, during the time that these operations
are not needed. On the other hand, the carpenter-
operator is engaged in an almost continuous opera-
tion while operating the Pettibone and performing
carpentry work with the result of economy in
performance of the work. Obviously, if the work
assignment remains as it is, using but one employee
group instead of two, it results in better utilization of
skills which in turn results in greater efficiency and
economy. Therefore, we find that the factors of skill,
economy, and efficiency of operations favor the
Carpenters.
4. Gain or loss of employment
The Carpenters, as previously stated, have per-
formed the work of Pettibone operator for a period
extending back over the past 10 years. It is clear from
the record that the Employer has used carpenters
for about 6 years and has throughout this period
developed a trained work complement to perform
this work. On the other hand, the record discloses
that Local 12, if the assignment were made to
them, would have to develop and train members
to perform this work. Thus, any assignment made
to members of Local 12 could only result in the
displacement of the Employer's trained and experi-
enced carpenter-operators. Therefore, we find that the
employment factor favors members of the Carpenters
rather than members of Local 12.
6. Employer' s preference
The fact that Hageland prefers an award to its
employees represented by the Carpenters is a factor
which supports assignment to the Carpenters.
Conclusions
Upon the entire record in this case and the
foregoing consideration of all the factors, in particu-
lar the factors of company and industry practices,
employer preference , relative skills, efficiency and
economy of operations , and gain or loss of employ-
ment, we conclude that the employees of the
Employer who are represented by the Orange
County District Council of Carpenters , AFL-CIO,
are entitled to the work in question, and we shall
determine the dispute in their favor.
441A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF THE 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
hereby makes the following Determination of Dis-
pute:
Employees of Martin Hageland Construction, Inc.,
represented by Orange county District Council of
Carpenters , AFL-CIO, are entitled to perform the
work of operating the Pettibone forklift, also known
as Pettibone High Lift, in framing construction work
in the construction industry for this Employer within
the geographical jurisdiction (Orange County, Cali-
fornia) of Orange County District Council of Carpen-
ters , AFL-CIO.