United Brothd. of Carpenters

National Labor Relations Board - Board Decisions

Mar 14, 1975

216 N.L.R.B. 1089 (N.L.R.B. 1975)

UNITED BROTHD. OF CARPENTERS 1089
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania, AFL-CIO and Master Builders'
Association of Western Pennsylvania, Inc. and
Jendoco Construction Corporation and Interna-
tional Association of Bridge, Structural and Orna-
mental Iron Workers , Local Union No. 3, AFL-
CIO. Case 6-CD-540
March 14, 1975
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 a charge filed by Master Builders' Association of
Western Pennsylvania, Inc. (MBA), on behalf of
Jendoco Construction Corporation, alleging that the
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania (Carpenters), violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the assignment of certain work to employ-
ees represented by that union rather than to
employees represented by International Association
of Bridge, Structural and Ornamental Iron Workers,
Local Union No. 3, AFL-CIO (Iron Workers).
Pursuant to notice, a hearing was held before
Hearing Officer Donald J. Burns on October 2 and 3,
1974. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to present evidence bearing
on the issues. Thereafter briefs were filed by all
parties.
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 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. The Board has considered the entire record
in this proceeding and makes the following findings:
I. THE BUSINESS OF THE COMPANIES
Jendoco, a Pennsylvania corporation with its
principal office in Pittsburgh, Pennsylvania, is
engaged as a contractor in the construction industry.
During the past 12-month period, Jendoco purchased
goods and materials valued in excess of $50,000
directly from outside the Commonwealth of Pennsyl-
vania. The parties stipulated and we find that
Jendoco is 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 of assert jurisdiction
herein.'
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Carpenters
and Iron Workers are labor organizations within the
meaning of the Act.
III. THE DISPUTE
A. Background
Jendoco, the general construction contractor here-
in, is currently engaged in work under contract with
the Pittsburgh, Pennsylvania, Board of Education for
the construction of the John Brashear High School in
Pittsburgh. In January 1974, Jendoco entered into a
subcontract with Dickerson whereby Dickerson
became obligated to manufacture, deliver, and erect
precast and prestressed concrete members composed
of columns, girders, and beams, which constitutes the
disputed work in this case. By virtue of its member-
ship in the Iron Workers Employer Association,
Jendoco has entered into successive agreements with
the Iron Workers for a number of years. By virtue of
its membership in the Master Builders Association
(MBA), Jendoco has also had successive labor
agreements with the Carpenters. While Dickerson
has had agreements with the Carpenters for about 20
years, it has never had any agreement with the Iron
Workers.
Section 18 of Jendoco's contract with the Iron
Workers provides:
A. Where precast, prestressed, reinforced
concrete structural members, columns, beams,
girders, slabs, roof-tees are used in the construc-
tion of buildings, bridges and other structures and
power equipment such as derricks, cranes, jacks
and/or rigging is used, work of loading, unload-
ing, moving and placing to complete erection
shall be performed by Ironworkers. All job
prestressing and post tensioning of concrete and
concrete structures shall be done by the Iron-
worker.
I While there was no stipulation regarding the status of Dickerson,
neither party contested Dickerson 's status as an employer, engaged in
commerce within the meaning of the Act. Moreover, the Board has asserted
jurisdiction over Dickerson in International Association of Bridge, Structural
and Ornamental Iron Workers, Local Union No. 3 (Dickerson Structural
Concrete Corporation), 195 NLRB 575 (1972), and in Local 568, International
Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(Dickerson Structural Concrete Corporation), 199 NLRB 907 (1972).
Accordingly, we take official notice of the facts in those cases and find that
Dickerson is properly before the Board in this proceeding.
216 NLRB No. 182
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 70 of the contract provides:
A. The Employer agrees not to sub-contract
or sublet any job site work covered by this
Agreement to any person, firm or corporation
which is not in contractual relationship with the
International Association of Bridge, Structural,
and Ornamental Iron Workers or any of its
affiliate local unions.
While both Jendoco and Dickerson have collective-
bargaining agreements with the Carpenters, Dicker-
son does not have an agreement with the Iron
Workers. Dickerson has historically used Carpenters
in the erection of the type of material involved
'herein. The collective-bargaining agreement between
Dickerson and its plant employees recognizes Car-
penters Local 2274 as the sole bargaining agent for
"all of Dickerson's production, erection (excluding
flat slab), maintenance men, truckdrivers .... "
Article 18 of the Master Builder's Association
Agreement with the Carpenters District Council, the
applicable area agreement herein, provides:
It is agreed that the Employer herein shall not
contract or sub-contract any carpentry work to be
done at the site of the construction, alteration, or
repair of a building structure or other work of like
nature to any other Employer who does not have
a collective bargaining agreement . . . with the
Carpenters' District Council of Western Pennsyl-
vania.
On July 12, 1974, before the erection work was to
begin, the Iron Workers filed a request for arbitra-
tion under the relevant provisions of its collective-
bargaining agreement with the Iron Workers Em-
ployer Association, of which Jendoco is a member.
In its request for arbitration, the Iron Workers
alleged that Jendoco, by subcontracting the disputed
work, which comes under the provisions of the
agreement 's jurisdictional clause , to an employer not
signatory to any agreement with the Iron Workers,
had breached the collective -bargaining agreement.
Upon being advised of this action by the Iron
Workers, Jendoco told Dickerson not to assign the
disputed work to any craft group until the jurisdic-
tional questions raised by the Iron Workers request
for arbitration had been resolved.
Dickerson, at a meeting attended by Jendoco
President Dozzi, and members of the MBA labor
committee and legal staff , announced that, while it
intended to assign the disputed work to Carpenters,
it would, at Jendoco's request, withhold any assign-
ment until such time as Jendoco could discuss the
matter with the Iron Workers.
A few days after this meeting, Carpenters Secretary
-Treasurer Argentine claimed the work for the
Carpenters and demanded that Jendoco give the
Carpenters a letter of assignment for the disputed
work. In the same conversation, Argentine informed
Dozzi that if the letter of assignment were not
forthcoming, the Carpenters would shut the job
down.
On September 4, 1974, Charles A. Stahl, the
Carpenters business agent, visited the jobsite and
demanded that Job Superintendent Miller give him a
letter assigning the disputed work to the Carpenters.
When Miller replied that no letter of assignment
would be given, Stahl ordered the 16 carpenters
employed by Jendoco to leave the jobsite. Immedi-
ately thereafter the MBA, on Jendoco's behalf, filed
the charges which gave rise to this proceeding.
B. The Work in Dispute
The dispute concerns the assignment of the
erection of precast concrete structural members
composed of columns, girders, and beams at the
Brashear jobsite, 590 Crane Avenue, Pittsburgh,
Pennsylvania.
C. Contentions of the Parties
The Iron Workers contends that the hearing was
premature. In this regard it states that it has filed suit
in the Federal District Court for the Western District
of Pennsylvania to enforce an arbitration award
(holding that Jendoco, by subcontracting the disput-
ed work to Dickerson, a party not in contractual
agreement with Iron Workers, had violated its
contract with Iron Workers). Accordingly, Iron
Workers contends this action should have been
postponed, or deferred until resolution by the
Federal court of the action under Section 301. They
also contend that the notice of hearing should have
been quashed since the Carpenters, the Respondent
herein, has engaged in no activity constituting
probable cause to believe that Section 8(b)(4)(D) of
the Act has been violated. Iron Workers further
asserts that, since Carpenters, Jendoco, and Iron
Workers are signatory to, and fall in the jurisdiction
of, the National Plan for the Settlement of Jurisdic-
tional Disputes in the Construction Industry, there
exists a method for voluntary adjustment of the
dispute. Finally, Iron Workers contends that, on the
merits, the work should be awarded to ironworkers
on the basis of collective-bargaining agreements,
skills, economy and efficiency of operations, and
area and company practice.
Jendoco, Dickerson, and the Carpenters take
basically the same position. Thus they contend the
action should not be deferred and that there is
probable cause to believe the Act has been violated.
They state that not all parties have agreed to a
UNITED BROTHD OF CARPENTERS
voluntary method for adjustment of the dispute and
that the notice of hearing should not be quashed. On
the merits , they all contend that on the basis of
collective-bargaining agreements , company and area
practice, skills, economy and efficiency of operation,
and employer preference, the work should be
awarded to employees represented by the Carpen-
ters.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause for
believing 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 Dickerson is one of the
largest companies in western Pennsylvania specializ-
ing in the manufacture and erection of precast
concrete structural members . By virtue of its collec-
tive-bargaining relationship with the Carpenters,
Dickerson has historically used carpenters in the
erection of this type material. Dickerson has no such
relationship with Iron Workers and has not used
ironworkers for this type of work. Thus when
Jendoco subcontracted the disputed work to Dicker-
son, Iron Workers filed a request for arbitration and
by so doing, we find, claimed the disputed work.
When the Carpenters, who had been expecting
assignment of the work, learned that Jendoco, the
general contractor, had requested that Dickerson not
assign the disputed work to any craft group until the
jurisdictional question raised by the Iron Workers
arbitration claim had been resolved, it requested a
letter of assignment of the disputed work from
Jendoco. In the same conversation, Carpenters
Secretary-Treasurer Argentine warned that if the
letter were not forthcoming, the Carpenters would
shut the job down. When a second request for a letter
of assignment of the disputed work was refused by
Jendoco, the 16 carpenters employed by Jendoco
walked off the job. At the hearing, Argentine testified
that the purpose for striking Jendoco was to have
Jendoco exert whatever influence it had with
Dickerson, the subcontractor, in favor of the Carpen-
ters.
In this connection we note the Iron Workers
argument that, under Jendoco's contract with the
Carpenters, Jendoco had the authority to give the
Carpenters the work it claimed and that the
Carpenters strike was a protest of Jendoco's failure
to do so. In our view the Carpenters, by striking, was
2 Local Union 354, IBEW, AFL-CIO (F. G. Johnson Company, Incorpo-
rated), 200 NLRB 599 (1972); United Brotherhood of Carpenters and Joiners
of America, Local No. 753, AFL-CIO (Blount Bros. Corporation), 175 NLRB
1091
either (a) putting pressure on the general contractor
to stop pressuring the subcontractor to withhold the
work assignment , or (b) seeking to compel the
general contractor to compel the subcontractor to
assign the work to the carpenters. In any event, the
ultimate object of the Carpenters strike was to
compel the then delayed work assignment to the
Carpenters, rather than to the Iron Workers, who
was then also claiming the work. In these circum-
stances the fact that either Union could assert a
contractual basis as one basis for claiming the work
does not detract from the jurisdictional nature of the
dispute.2 In view of the foregoing, we are satisfied,
and we find, that there is reasonable cause to believe
that Section 8(b)(4)(D) of the Act has been violated.
Further, we find without merit Iron Workers conten-
tion that the National Joint Board constitutes an
agreed-upon method for voluntary adjustment of the
dispute within the meaning of Section 10(k). There is
no evidence that Dickerson, the subcontractor-em-
ployer, is party to any agreement which provides for
the submission of jurisdictional disputes to the
National Joint Board.
Finally we find without merit the Iron Workers
contention that this proceeding should be stayed
pending its seeking enforcement of its arbitration
award in the Federal courts. The record reveals that
neither Dickerson nor Carpenters was a party to,
participated in, or agreed to be bound by the
arbitration proceeding.3
Accordingly, on the basis of the foregoing, the
matter is properly before the Board for determina-
tion.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
consideration to various relevant factors. The follow-
ing factors are relevant in making a determination of
the dispute before us.
1. Collective-bargaining agreements
Dickerson has no employees represented by Iron
Workers, nor does it have a collective-bargaining
agreement with Iron Workers. On the other hand, for
nearly two decades Dickerson has had a series of
collective-bargaining agreements with Carpenters. It
has assigned work similar to that presently in
question to carpenters and states a desire to assign
the present work to carpenters on the basis of its
interpretation of its contractual relationship with the
Carpenters.
4%(1%9).
3 New York Mailers ' Union Number Six, International Typographical
Union, AFL-CIO (The New York Times Company), 171 NLRB 834 (1968).
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Iron Workers contract with Jendoco pur-
ports to cover the disputed work , the record reveals
that the work has been subcontracted to Dickerson
and that Jendoco has not retained the right to assign
the work . Since Dickerson is therefore the Employer
who will ultimately make the work assignment, we
find that Dickerson 's contractual relationship with
Carpenters favors an award to employees represent-
ed by that labor organization.
2. Company, area, and industry practice
Dickerson's consistent practice when it has per-
formed the disputed work has been to assign the
disputed work to carpenters .4 This factor favors a
present award to employees represented by the
Carpenters.
Regarding area practice, the record reveals some
instances when erection work of the nature involved
herein has been performed by other subcontractors
in the area who have used employees represented by
Iron Workers . While Dickerson , using carpenters,
does a major portion of erection work in western
Pennsylvania , inasmuch as the area practice is mixed
this factor favors neither party . Neither party urges
that industry practice favors an assignment one way
or another.
3. Skills involved and efficiency and
economy of operation
The record shows that carpenters possess the
necessary skills to perform satisfactorily the work in
dispute and the Employer is fully satisfied with their
productivity , efficiency , and safety record, and
desires to continue assigning such work to them. In
those instances where the Employer has subcontract-
ed similar work to other subcontractors who have
used ironworkers , the ironworkers' performance has
been unsatisfactory . Additionally , the Carpenters has
4 In two previous Board proceedings involving this Employer and Iron
Workers, work similar to that involved herein has not been awarded to
ironworkers . Thus, in 195 NLRB 575, the Board upheld Dickerson's
worked with the Employer in training supervisors
and the Employer employs those carpenter-supervi-
sors who are more familiar with the tools, work
methods, and activities of carpenters, and therefore
could perform the work more efficiently and eco-
nomically under such an assignment.
Conclusion
Upon the record as a whole and after full
consideration of all relevant factors, in particular the
contractual relationship between the Employer and
the Carpenters, the Employer's practice and prefer-
ence , and the efficiency of operations , we conclude
that the employees of the Employer who are
represented by Carpenters are entitled to the work in
question and we shall determine the dispute in their
favor. In making this determination we award the
work to the employees of the Employer who are
represented by Carpenters but not to that Union or
its members . Our present determination is limited to
the particular controversy which gave rise to this
proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National 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 Dispute:
Employees of Dickerson Structural Concrete Cor-
poration who are currently represented by United
Brotherhood of Carpenters and Joiners of America,
Carpenters District Council of Western Pennsylvan-
ia, AFL-CIO, are entitled to perform the erection of
precast structural members composed of columns,
girders, and beams at the Brashear High School, 590
Crane Avenue, Pittsburgh, Pennsylvania, jobsite.
assignment of the work to carpenters . In 199 NLRB 907, the Board upheld
the Employer's award of the work to a composite crew of carpenters and
laborers.