Quad C Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1979

246 N.L.R.B. 463 (N.L.R.B. 1979)

QUAD C CORPORATION
Quad C Corporation and Associated General Contrac-
tors of California and California State Council of
Carpenters, United Brotherhood of Carpenters and
Joiners of America. Case 20 CA 13623
November 14. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PNEI.I()
AND TRUESDAI.I
On June 27, 1979, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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 Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondents, Quad C Corporation and
Associated General Contractors of California. San
Francisco, California, their officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I Respondents have excepted inferentially to certain credibility findings
made by the Administrative Law Judge. It is the Board's established policy
not to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENTr OF THE CASE.
JERROI.D H. SHAPIRO, Administrative Law Judge: The
hearing in this case was held on May 3, 1979, and is based
on unfair labor practice charges filed January 24, 1978. by
California State Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, herein called
the California State Council of Carpenters. On August 21.
1978. the General Counsel of the National Labor Relations
Board issued a complaint alleging that Quad C Corporation
and Associated General Contractors of California, herein
respectively called Respondent Quad C and Respondent
AGC. violated Section 8(a)(5) and (1) of the National La-
bor Relations Act, as amended. herein called the Act. by
refusing to recognize and bargain collectively with the Cali-
fornia State Council of Carpenters as the exclusive collec-
tive-bargaining representative of Respondent Quad C's dry-
wall installers. Respondents filed an answer denying the
commission of the alleged unfair labor practices.'
Upon the entire record.2 including my observation of the
witnesses and upon consideration of the parties' briefs. I
hereby make the following:
FINDING(S OF FA( I
I. t111 AlI.lt.(iED NFAIR L.AFO(R PRAt11(lIS
A. The Facts
Respondent Quad C is licensed to operate as a general
contractor in the construction industry, but does business
primarily as a subcontractor. Since it started business in
1972, Quad C has worked exclusively on projects involving
commercial buildings. After the steel frame is erected and
the floors are poured. Quad C fireproofs the steel frame
using its own lathers, plasterers, and hod carriers. It then
installs the interior ceilings and walls using its own journey-
men and trainee drywall installers, who attach Sheetrock,
commonly known as gypsum wallboard, to the walls and
ceilings. In addition to this drywall work the drywall install-
ers perform conventional carpentry tasks which journey-
men and apprentice carpenters are qualified to perform.
Nonetheless. Quad C has alway ; hired journeymen and
trainee drywall installers to do all of the work connected
with and surrounding the installation of the gypsum wall-
board, including the conventional carpentry work, and pays
them the higher drywall installer rate of pay for all of the
work. In this regard I note that Quad C, in describing its
business, calls itself a "drywall" subcontractor.'
Quad C's employees are members of various craft unions
with whom Quad C has collective-bargaining contracts.
The dispute in this case involves the representation of the
drywall installers who are members of local unions affili-
I Respondents, in the answer to the complaint, admit that Respondent
Quad C and Respondent AGC and its employer members are employers
engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act and
meet the Board's applicable discretionary junsdictional standard. Also, Re-
spondents admit that the California State Council of Carpenters is a labor
organization within the meaning of Sec. 2(5) of the Act.
2 The General Counsel's motion to correct transcript is granted.
The record establishes that journeymen and apprentice carpenters are
not qualified to do drywall work, i.e.. install wallboard, because it requires
special skills not acquired through the carpenters' apprenticeship training
program or while working as a carpenter. The result is that drywall installers
must go through a 2-1 /2-year apprenticeship training program which is sepa-
rate and distinct from the carpenters' apprenticeship training program and
that drywall contractors, such as Quad C., pay their drywall installers sub-
stantially more than carpenters because of their special skills and the special
nature of their work.
4 In its answer to the complaint, Quad C admits that it is engaged in
business as "a drywall subscontractor." Also. in its AGC membership appli-
cation Quad C represented that it performed "drywall" construction as a
subcontractor.
246 NLRB No. 75
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ated with the United Brotherhood of Carpenters and Join-
ers of America, herein called the Carpenters' International
Union. The question presented for decision herein is which
labor organization affiliated with the Carpenters' Interna-
tional Union, the California State Council of Carpenters, or
the 46 Counties Carpenters' Conference Board, is Respon-
dent Quad C obligated to recognize as the bargaining repre-
sentative of its drywall installers.
Since commencing business in 1972 Quad C has been
party to successive collective-bargaining agreements,
known as the 46 Counties Agreement, entered into by and
between various employer associations, including the Re-
spondent AGC, on behalf of their employer-members, and
the Carpenters' International Union, on behalf of its local
unions and district councils situated in the 46 northern
California counties. This agreement is administered for the
Carpenters' International Union by the 46 Counties Car-
penters' Conference Board. Quad C initially became a party
to the 46 Counties Agreement by virtue of signing the 46
Counties Memorandum Agreement whereby it agreed to
comply with the terms of the 46 Counties Agreement.
Thereafter, in 1975, by joining the AGC and becoming a
"regular" member of that organization, Quad C automati-
cally became a party to the 46 Counties Agreement by vir-
tue of its membership. The current 46 Counties Agreement
is effective from June 16, 1977, through June 15, 1980. Sec-
tion 7 of the agreement provides that "[t]he employer
hereby recognizes the Union [referring to the Carpenters'
International Union] as the sole and exclusive collective-
bargaining representative of all employees and persons em-
ployed to perform work covered by this agreement." Sec-
tion 4, which defines the "work covered" by the agreement,
reads in pertinent part: "All carpentry work on all con-
struction, including but not limited to, construction, erec-
tion, alteration, repair, modification, demolition, addition
or improvement of or to a building or any other structure or
construction." Regarding the hiring of applicants, section
49 provides that employers are obligated to hire employees
to perform work covered by the agreement through em-
ployment lists established by the local unions affiliated with
the Carpenters' International Union in whose geographical
jurisdiction the work is being performed. Section 40 of the
agreement, entitled "wage rates," contains the hourly wage
rates for the following job classifications: "journeyman car-
penters," "hardwood floor layers," "shinglers," "power saw
operators." "steel scaffold erectors and/or steel shoring
erectors," "saw filers," and "millwrights." These classifica-
tions are identical to the ones included in the 1974-77
predecessor to the current 46 Counties Agreement. During
the bargaining negotiations leading up to the current agree-
ment the AGC proposed that the job classification "drywall
hanger" be included in the agreement. The Union rejected
this proposal and the AGC did not press the matter.
Quad C's drywall installers, from the time Quad C first
began its operation in September 1972 until the early part
of 1974, were employed pursuant to the terms and condi-
tions of employment set forth in the 46 Counties Agree-
ment. During this period this was the only collective-bar-
gaining agreement between Quad C and the Carpenters'
International Union or any of its affiliates. Quad C was not
a party to the drywall master agreement between the Cali-
fornia Drywall Contractors Association and the California
State Council of Carpenters effective August 1, 1971, to
July 31, 1974. However, in early 1974, a representative of a
local union affiliated with Carpenters' International Union,
which was furnishing Quad C with drywall installers under
the terms of the 46 C'ounties Agreement, notified Quad C
that the Union would cease referring drywall installers to
Quad C unless the Company became a party to the drywall
master agreement. So, on February 26, 1974, in order to
insure itself a continuous supply of drywall installers, Quad
C signed the drywall memorandum agreement whereby
Quad C, on behalf of itself; and the California State Coun-
cil of Carpenters. on behalf of its affiliated local unions and
district councils, agreed that in consideration of services
performed and to be performed by "drywall installers"
Quad C would agree "to comply with all wages, hours.
working conditions, provisions and rules as set forth . . . in
the Drywall Master Agreement dated August 1, 1971, to
July 31, 1974 . . . and any modifications, changes, exten-
sions or renewals of' or to said Master Agreement which
may be negotiated by the parties thereto." Quad C further
agreed that "this agreement [referring to the drywall memo-
randum agreement] shall remain in full force and effect un-
til July 31, 1974. and shall continue from year to year there-
after unless either party shall give written notice to the
other of the desire to change or cancel at least sixty (60)
days prior to July 31, 1974, or July 31 of any succeeding
year.
Article 3 of the 1971-74 drywall master agreement,
which agreement Quad C agreed to comply with by signing
the drywall memorandum agreement, provided that Quad
C recognize the California State Council of Carpenters "as
the exclusive bargaining representative of all employees and
persons employed to perform work covered by the Agree-
ment." And, the "work covered" by the agreement as de-
scribed in article 1 is as follows:
ARTICLE I
WORK COVERED BY THIS AGREEMENT
The work covered by this Agreement shall include
but shall not be limited to the following described
work at the construction job site:
Section 1. The installation, carrying, transportation.
handling, stocking, and scrapping of all materials and
component parts of all types of ceilings regardless of
their materials or composition or method or manner of
installation, attachment or connection, including but
not limited to all hangers: carrying channels, cross fur-
ring, stiffeners, braces, all bars regardless of material or
method of attachment, all integrated gypsum wall-
board ceiling heat panels, all radiant heat ceiling back-
ing, all main tees, all cross tees, all splines, all wall and
ceiling angles or moulding, all backing board and all
finish ceiling materials, regardless of method or man-
ner of installation.
Section 2. All work in connection with the installa-
tion, erection and/or application, carrying, transporta-
tion, handling, stocking of all materials and compo-
nent parts of wall and partitions regardless of their
material composition or method or manner of their in-
stallation, attachment or connection, including but not
464
QUAD C CORPORATION
limited to all floor ceiling runners, studs, stiffeners.
cross bracings, fire blocking resilient channels, furring
channels, doors and windows including frames, casing
moulding, base accessory trim items, gypsum drywall
materials, laminated gypsum systems, backing board
for all systems, including but not limited to thin coat
and other finished systems, plastic and/or paint fin-
ished bases, finish board. fireproofing of beams and
columns, fireproofing of chase, sound and thermal in-
sulation materials, fixture attachments including all
layout work, preparation of all openings for lighting.
air vents or other purposes, and all other necessary or
related work in connection therewith.
Section 3. No limitation shall be placed on the work
covered by this Agreement by reason of the surface or
texture or purpose for which the materials described
herein are used, designed or intended.
Section 4. It is further specifically understood that
the installation. tieing and connection of all types of
light iron and metal studs and all types of light iron
furring erected to receive the materials specified in this
article, including but not limited to gypsum wallboard,
walls, partitions, gypsum wallboard, ceiling heat pan-
els, backing boards, plastic or acoustical materials or
any material attached to the above-described light iron
construction is specifically included in the work cov-
ered by this Agreement.
Section 5. The provisions of this Article shall not be
used or applied in any manner so as to be inconsistent
with any applicable provision of the following Agree-
ments:
a. 46 Northern California Counties Carpenters
Master Agreement;
b. I I Southern California Counties Carpenters Mas-
ter Agreement;
c. San Diego Carpenters Master Agreement.
The drywall master agreement also contains a union-secu-
rity clause whereby after their eighth day of employment
employees covered by the agreement must become a mem-
ber in good standing of the local carpenters' union which
has the territorial jurisdiction in which the employer is
doing business. Also, the agreement requires the employer
to hire employees to perform the work covered by the
agreement using employment lists established by the local
unions affiliated with the Carpenters' International Union
in whose geographical jurisdiction the work is being done.
Finally, the agreement by its terms (art. 21) provides that
upon its termination date, July 31., 1974, that the agreement
shall continue to remain in full force and effect from year to
year thereafter without change or modification, unless one
of the parties gives written notice to the other party of pro-
posed changes or modifications at least 60 days, but in no
event more than 90 days prior to July 31, 1974. On August
1, 1974, the parties to the 1971-74 drywall master agree-
ment amended, modified, and renewed the agreement and
entered into a new agreement effective August 1, 1974, to
July 31, 1977. The substantive terms of the 1971-74, agree-
ment which have been set out above are identical to those
contained in the new agreement.
Following Quad C's execution of the drywall memoran-
dum agreement on February 26. 1974, Quad C complied
with all of the terms of the drywall master agreement from
February 26. 1974, through approximately August 1974. at
which time it took the position that since the drywall mas-
ter agreement had terminated as of July 31. 1974. that
Quad C was not obliged to comply with the terms of the
successor agreement.
On May 12. 1975. Quad C's president, Robert Chaney.
wrote the California State Council of Carpenters stating
that his company was not a party to the drywall master
agreement "for the contract term beginning August . 1974.
and ending July 31. 1975." but if there was any question
about the Company's contractual obligation then. "pursu-
ant to the applicable provisions of the Drywall Master
Agreement, Quad C Corporation hereby gives written no-
tice that it will not be a party to the Drywall Master Agree-
ment for the contract term beginning August I. 1975. and
ending July 31, 1976." In reply, the California State Coun-
cil of Carpenters, through its lawyer, by a letter dated May
21, 1975. advised Chaney, "Your purported notice to termi-
nate the agreement is untimely and accordingly. my client
will expect you to live up to all of its terms" and threatened
to take "appropriate action" if Quad C failed to live up to
the terms of the current drywall master agreement. Quad C
ignored this warning and in certain respects did not abide
by the terms of the 1974 77 drywall master agreement:
The California State Council of Carpenters retaliated by
filing a contractual grievance against Quad C. The joint
adjustment board which handles such grievances under the
drywall master agreement's grievance procedure found that
Quad C had violated the agreement in several respects and
fined it. By letter dated January 20, 1977. the joint adjust-
ment board notified Quad C of its award. Quad (' refused
to comply with the board's award so that California State
Council of Carpenters instituted a lawsuit to enforce the
board's award. By letter May 3. 1977, addressed to the Cali-
fornia State Council of Carpenters, Quad C's president,
Robert Chaney, in response to the lawsuit, reiterated the
Company's position that it was not a party to the 1974-77
drywall master agreement and explained that in February
1974 it had signed the drywall memorandum agreement
"under duress" but that, in any event, its obligation to
abide by this agreement had terminated because thereafter
Quad C had signed the 46 Counties Memorandum Agree-
ment and on May 12, 1975, had given timely written notice
that it would not be a party to the drywall master agree-
ment effective August 1, 1975. Chaney concluded this letter
with the statement that should the court decide that Quad
C was still legally bound to comply with the terms of the
current drywall master agreement, that "Quad C hereby
gives written notice that it will not be a party to the Dry-
wall Master Agreement with the contract term beginning
August I, 1977." The California State Council of Carpen-
ters treated the aforesaid letter as a timely notice of Quad
C's intention to terminate its obligation under the drywall
memorandum agreement to abide by the successor to the
current drywall master agreement negotiated by the parties.
On September 16. 1977. Michael Roger. the attorney for
California State Council of Carpenters, wrote Quad C that
'The record reveals that Quad (' did, however, comply with the agree-
ment's wage provisions.
465
I) ECISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
since it had given timely notice to terminate the terms of the
1974 77 drywall master agreement, that the California
State Council of Carpenters requested a meeting with the
Company to negotiate a new contract for the Company's
drywall installers and asked the Company to contact the
Union to arrange for such a meeting. In answer Quad C,
through its attorney. I.ouis (iiraudo, by letter dated Sep-
tember 21. 1977, advised Roger that "[ilt is the position of'
Quad C that they are not signators to any I)rywall Master
Agreement. The Company does not feel compelled to nego-
tiate as it is a member of AGC and is advised by them that
the work it performs is covered under the A