The Wood, Wire & Metal Lathers Local No. 68

National Labor Relations Board - Board Decisions

Jun 27, 1966

159 N.L.R.B. 1409 (N.L.R.B. 1966)

THE WOOD, WIRE & METAL'LATHERS LOCAL NO.668 1409
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, _as author-
ized in Section 8(a)(3) of the National Labor Relations Act, as amended.
All our employees are free to become or remain or to .refrain from becoming
or remaining members in good standing of International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any
other labor organization.
JEFFERSON WIRE AND' CABLE CORP.,
1 ; Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Bos-
ton Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts
02108, Telephone 223-3358.
The Wood, Wire and Metal Lathers International Union, Local
Union No. 68, AFL-CIO and Drywall Steel Erectors, Inc. and
Carpenters District Council of Denver and Vicinity, an affiliate
of United Brotherhood of Carpenters and Joiners of America,
AFL-CIO . Case 27-CD-68. June 27,1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Drywall Steel
Erectors, Inc., herein referred to as Steel Erectors, or the Employer,
alleging that The Wood, Wire and Metal Lathers International
Union, Local Union No. 68, AFL-CIO, herein referred to as the
Lathers or the Respondent, had induced and encouraged employees of
Steel Erectors to strike for the purpose of forcing or requiring the
Employer to assign particular work to members of the Respondent
rather than to members of Carpenters District Council of Denver and
Vicinity, an affiliate of Union Brotherhood of Carpenters and Joiners
of America, AFL-CIO, herein referred to as Carpenters. A hearing
was held before Hearing Officer J. Donald Meyer on October 19, 20,
and 21, 1965. All parties 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. The rulings of the
Hearing Officer made at the hearing are free from prejudicial error
and are hereby affirmed. Briefs were filed by the Employer,
Respondent, and Carpenters and have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has deleated its 'powers. in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
159 NLRB No. 115.
243-084-67-vol. 159-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board makes the following
findings :
I. THE BUSINESS OF THE EMPLOYER
Steel Erectors is a Colorado corporation engaged in the business
of installing metal components to receive drywall surfaces and has
received materials directly and indirectly from outside Colorado
valued at more than $84,000 during 1965. It has a collective-
bargaining agreement with the Carpenters.
State Lathing Co., Inc., herein referred to "as State Lathing, is an
employer engaged in the lathing and plastering business in Colorado.
It has a collective-bargaining agreement with the Lathers.
Steel Erectors was formed on December 31, 1964, by stockholders
of State Lathing, and on the same date entered into a collective-
bargaining agreement with the Carpenters. Steel, Erectors employed
its first workmen in January 1965. The work of installing metal
components to receive drywall surfaces was taken over by Steel Erec-
tors on certain jobs 'which theretofore had been performed by lathers
employed by State Lathing without any change made in the agree-
ments between State Lathing and the drywall contractors.
On the basis of the foregoing and other factors in Case 27-CD-59,
State Lathing and Steel Erectors were found to constitute a single
employer, and the disputed work involved therein was awarded to
employees of State Lathing who were employed as lathers.,
The instant case brings before us another stage of the dispute
between the Employer and the Unions. The Employer contends
that the two corporations can no longer be,considered as a single
employer because of a change in ownership in Steel Erectors which
occurred after the February 18, 1965, 10(k) hearing upon which the
Board based its previous decision.
The record shows that on or about March 6, 1965, Vernon L.' Ray-
mer and Vincent J. Ranieri each purchased 10 shares of stock for
81,000 a share and became, respectively, president and vice president
of Steel Erectors. Raymer had previously been employed by State
Lathing as a field superintendent and Ranieri had been employed by
the same company, apparently as a lather. The other two stock-
holders of Steel Erectors are Donald L. Reim, who owns two shares
and who is also a stockholder and officer in State Lathing, and Ila
Owens who owns three shares.2 These two individuals received their
1 Wood, Wire and Metal Lathers International Union, Local Union No. 68 ( State Lathing
Co.), 153 NLRB 1189 . On July 19, 1965, the Employer filed a motion for rehearing on
the basis of events which it alleged had developed subsequent to the February 18, 1965,
10(k) hearing in the above case. On August 27, 1965 , the Board denied the motion
a Ila Owens is the wife of Gurley Owens and received her three shares of stock without
the knowledge of Raymer and Ranieri.
THE WOOD, WIRE & METAL LATHERS LOCAL NO. 68 1411
shares of stock directly from Steel Erectors, without giving any
monetary consideration therefore. Two former stockholders,- Mrs.
Donald L. Keim and Dorothy Larsen relinquished their shares of
stock. The record does riot show whether they received any compen-
sation therefor;, it does show that Raymond and Ranieri did not
purchase their shares from them, but: purchased their shares directly
'from Steel Erectors.
Gurley Owens, the former general manager of the corporation,
is now employed by Steel Erectors in the capacity of sales representa-
tive with the duty of contracting customers and promoting public
relations. Although the Employer contends that Owens no longer is
a dominant influence in Steel.Erectors operations, the record shows
that he negotiates contracts and otherwise remains,a dominant factor
'iii'the operation of the business. He is one of the required cosigners
of checks issued by Steel Erectors. Owens was the one who, on his
own initiative, ordered Steel Erectors' employees off the job in dis-
pute herein. Owens remains as the general manager of State Lath-
ing, which corporation has not been dissolved. After the above
change in the ownership of Steel Erectors, that Company took over
certain contracts which State Lathing had been performing, such as
the John F. Kennedy' High' School, Denver, and the College Center
and Women's Dormitory, both in Greeley, Colorado. On these jobs
the lathers who had been employed by State' Lathing continued to
work on the job and were paid by checks issued by Steel Erectors.
On the John F. Kennedy High School project, lathers were paid on
State Lathing checks until mid-June and used tools and equipment
belonging to both companies. It appears that with respect to State
Lathing projects in which work was in'progress Steel Erectors merely
took over the 'existing contracts and continued to employ lathers.
However, with respect to other contracts obtained by Steel Erectors,
it followed a policy, of assigning the work to carpenters.
On the basis of all the foregoing, we find that, notwithstanding the
investment of 'Raymer and Raineri in Steel Erectors and their
assumption of the two top offices of that corporation, Steel Erectors
and State Lathing continue to function as a single integrated enter-
prise.' Accordingly, we find that these two corporations still consti-
tute a single employer within the meaning of Section 2(11) of the
8 During the hearing Respondent served subpoenas duces tecum on Raymer and Keim re-
quiring the production of all financial books and records and all contracts and payroll
records of the concern since January 1, 1965. The Employer filed a motion to revoke the
subpenas which the hearing officer granted subsequent to the hearing The hearing officer
stated that he was granting the motion to revoke because, in his view, the Board's prior
determination that State Lathing and Steel Erectors are a single employer was dispositive
of the issue and since evidence in the record herein shows that State Lathing has not been
dissolved or gone through bankruptcy, the relationship between the two companies is well
established and is no longer germane to the present proceeding In view of our disposi-
tion of the single employer issue we find no prejudice to Respondent in such action.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, and that it will effectuate the policies of the Act to assert juris-
diction herein.
U. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Respondent and Carpen-
ters are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The work in issue
The work in dispute, herein is the installation of metal hanger
wires, carrying channels, and furring channels which are to receive
drywall on the soffit 4 and vertical portions of false beam ceiling
sections. -
Background
The record in the instant case shows that State Lathing has never
employed carpenters for any of its work. Immediately prior to and
subsequent to the formation of Steel Erectors,5 State Lathing was
performing the work in dispute on various projects in addition to
the installation of metal components to receive drywall on interior
partitions.
The particular dispute involved herein arose over the-reassignment
of the disputed work on an addition to the Montgomery Ward store
at the Villa Italia Shopping Center in Jefferson County, Colorado.
Valentine Decorating Company had been awarded the contract for
the performance of the disputed work and commenced work on
July 27, 1965, using two lathers to perform the work. On July 29,
1965, Valentine assigned the work to Steel Erectors and paid off the
lathers. The following morning, Steel Erectors began working on
the job with four carpenters. On the same morning, the Lathers set
,up a picket line and carried picket signs which read : "DryWall
Steel Erectors refuse to comply with NLRB Decision-Lathers Local
No. 68." As a result of the picket line, Gurley Owens, after consulta-
tion with the other contractors on the project, voluntarily took Steel
Erectors employees off the job.
B. Contentions of the parties
Respondent contends that, as the work involved on the Federal
Center Building, one of the jobs on which the dispute involved in the
State Lathing case arose, also included the installation of metal com-
' Soffit is the term applied to the horizontal surface of a "false beam" ceiling False
beam ceilings must be constructed to hide pipes or heating ducts which traverse a room
just below ceiling height.
5 See Wood, Wire and Metal Lathers International Union, Local Union No. 68 (State
Lathing Co.), 153 NLRB 1189.
THE WOOD, WIRE & METAL LATHERS LOCAL NO. 68 1413
ponents for soffit and vertical portions of, false beam ceiling sections
as well as for interior partitions, the Board's prior determination in
that case also awarded the work in dispute herein to lathers. It bases
this contention on the fact that the award extended beyond the Fed-
eral Center project to all jobs being performed by or which might be
awarded to the Employer in Denver, Colorado, and vicinity. The
Respondent further contends that the original assignment and its
collective-bargaining agreement with the Employer support its claim
to the disputed work.
The Employer and the Carpenters contend that the Board's prior
award is limited to the erection of metal components for interior par=
titions and does not encompass erection of such components for soffit
and vertical positions of false beam ceilings. They rely on the car-
penters' skills for the work involved, their collective-bargaining
agreement, industry practice, and operating efficiency to support the
Employer 's assignment of the work to carpenters.
C. Applicability of the statute
The charges filed herein allege a violation of Section 8(b) (4) (D)
of the Act. The record shows, and the Respondent does not deny,
that it threatened to and did stop work in order to force Steel Erec-
tors to use lathers rather than carpenters on the Villa Italia Shop-
ping Center job. The Respondent, however, contends that its action
was not in violation of Section 8(b) (4) (D) of the Act and that its
action was based entirely upon Steel Erectors failure to comply
with the Board's Order in the prior case. We find that the work
in dispute herein was not specifically covered in the Lathers'
agreement, or specified in the Board's determination in Case
27-CD-59. The work in dispute therein was the erection of all metal
components which are installed to receive drywall on interior parti-
tion [emphasis supplied]. Here, however, we find that the work in
dispute although closely related, was not alleged in the complaint or
mentioned in the prior hearing and therefore was not included in the
prior determination . Accordingly, we find Respondent's contention
to be without merit.
We therefore find that 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 under Section 10(k) of
the Act.
D. Merits of the dispute
-Section 10(k) of the Act requires the Board to make an affirmative
award of the disputed work, after giving due consideration to the
various relevant factors. The following are the.,factors relied on by
the parties to the dispute to support their respective claims.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The collective-bargaining agreements
Steel Erectors and Carpenters have a contract which they claim,
and for, the, purpose of this case we assume , assigns the work in dis-
pute herein to employees represented by the Carpenters.
Respondent contends that its contract with State Lathing assigns
the work in dispute herein to its members. In the previous case, how-
ever, we found that the same contractual language did not specifically
assign the work in dispute therein. Accordingly we find that this
language does not specifically assign the work in dispute herein to
members of Respondent.
We do not consider the bargaining agreement between Steel Erec-
tors and the Carpenters to have controlling weight because their con-
tract was executed at a time when employees of State Lathing, who
were covered by an existing collective-bargaining agreement with
Respondent, had been performing the work in dispute under the terms
and conditions of employment established in a collective- bargaining
agreement between the Employer and the Respondent.
2. Company, area, and industry practice
Both Unions offered evidence on area and industry practice; such
evidence, however, was general and inconclusive and does not disclose
a controlling practice. As has already been noted, the Employer's
past practice has been to assign the work in dispute herein to lathers
under its collective-bargaining agreement with Respondent.
The record herein shows that the Employer, even after the forma-
tion of Steel Erectors and its collective-bargaining agreements with
the Carpenters, continued to employ lathers on projects currently
under construction. Indeed, on certain jobs, the record shows that
Steel Erectors took overwork which was being performed by State
Lathing and continued to employ the very same lathers who had been
employed by State Lathing. The Employer's most recent assignment
of the work, to carpenters, therefore, represents a change in the
Employer's past practice.
3.. Employee skills and efficiency of operations
It is not contended that either lathers or carpenters lack the skills
or ability, to perform the work in dispute in the instant case. The
record indicates that the skill required to install the metal, hanger
wires, carrying channels,, and furring channels on the soffit and verti-
cal portions of false beam ceiling sections is the same whether they
are to receive a dry plaster wall surface or some other surface. The
record further shows that from the standpoint of efficiency the assign-
ment of the work'favors neither craft.'
THE WOOD, WIRE & METAL LATHERS LOCAL NO. 68 1415
4. Action of the Joint Board
Steel Erectors, the Charging Party, is not a party to an agreement
binding- it to accept decisions of the National Joint Board for the Set-
tlement of Jtirisdictional Disputes, and this dispute was not sub-
mitted to the Joint Board. The parties stipulated that there is no
agreed upon . method for settling. the dispute. The record herein
shows that the Joint Board is presently studying the question of the
Lathers and Carpenters Unions'.jurisdiction over work, of this nature.
CONCLUSION
Upon consideration of all the -pertinent factors appearing in the
entire record, we shall assign the work in dispute to lathers. Lathers
- are as skilled in the performance of the work in dispute as are the
carpenters who compete for it. Lathers, although employed by an
employer not involved herein, started to perform the work in dispute
on the project directly involved. The Employer employs lathers and
has a collective-bargaining agreement with Respondent Lathers.
Assignment of the work to lathers is not inconsistent with area and
local industry practice. It is consistent with the Employer's past
practice and with the' collective-bargaining agreement between the
Lathers and the Employer under which lathers had performed the
work in question, until the Employer recognized the Carpenters, and
substituted carpenters for lathers on new projects not already under
construction at the time of our decision in the State Lathing case,
supra. In these circumstances, we find that it would upset the stabil-
ity of the existing collective-bargaining relationship between the
Employer and the Respondent were we to honor the Employer's
assignment of the work in dispute to carpenters.
We shall determine the existing jurisdictional dispute by deciding
that lathers, rather than carpenters, are entitled to the work in dispute.
As the Employer announced, upon the formation of Steel Erectors
and that company's execution of a collective-bargaining agreement
with the Carpenters, that it intended to follow the work assignment
placed in issue herein for all future jobs, we shall make this determi-
nation applicable to all similar work being performed by, or which
may be awarded to, the Employer in Denver, Colorado, and vicinity.
In making this determination, we are assigning the disputed work to
the employees of the Employer who are represented by the Lathers
but not to that Union or its members.
- • • 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
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record in this proceeding, the National Labor Relations Board hereby
makes the following determination of the dispute :
Lathers employed by the Employer, who are represented by the
Wood, Wire and Metal Lathers International Union, Local Union
No. 68, AFL-CIO, are entitled to perform the work of installing
metal hanger wires, carrying channels, and furring channels to receive
drywall on soffit and vertical portions of false beam ceiling sections
on the addition to the Montgomery Ward store at the Villa Italia
Shopping Center, and on all other jobs being performed by, or which
may be awarded to, the Employer in Denver, Colorado, and vicinity.
Local 825, International Union of Operating Engineers, AFL-
CIO, and Peter Weber, President and Business Manager and
Utilities Line Construction Co., Inc. Case 4-CD-147. Jwne 27,
1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National
Labor Relations Act, as amended, following a charge filed by Utili-
ties Line Construction Co., Inc.,' alleging a violation of Section 8(b)
(4) (i) and (ii) (D) of the Act by Local 825, International Union of
Operating Engineers, AFL-CIO '2 and Peter Weber, president and
business manager. The charge alleges, in substance, that the Oper-
ating Engineers had induced and encouraged employees to cease work
and had threatened, coerced, and restrained the Employer, the afore-
mentioned employees, and other persons with an object of forcing or
requiring the Employer to assign particular work to employees repre-
sented by the Operating Engineers rather than to employees repre-
sented by Local 358, International Brotherhood of Electrical Workers,
AFL-CIO' Pursuant to notice, a hearing was held before Hearing
Officer Robert D. Kaplan of the National Labor Relations Board,
on March 10 and 16, 1966. All parties 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. The
rulings of the Hearing Officer made at the hearing are free from prej-
udicial error and are hereby affirmed. The Employer and Local 358
filed briefs which have been duly considered. The Operating Engi-
neers did not file a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
1 Herein called Utilities Line or Employer.
2 Herein called operating Engineers or Local 825.
a Herein called Local 358.
159 NLRB No. 131.