United Brothd. of Carpenters, Local 200

National Labor Relations Board - Board Decisions

Oct 17, 1969

179 N.L.R.B. 209 (N.L.R.B. 1969)

UNITED BROTHD. OF CARPENTERS, LOCAL 200,
United Brotherhood of Carpenters and Joiners of
America , Local No. 200, AFL-CIO and Pagura
Masonry Contractors, Inc. and Laborers
International Union of North America , Local No.
423, AFL-CIO. Case 9-CD-154
October 17, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following charges filed by Pagura Masonry
Contractors, Inc., herein called Pagura Masonry or
the Employer, alleging that United Brotherhood of
Carpenters and Joiners of America, Local No. 200,
AFL-CIO, herein called Carpenters Local 200, has
violated Section 8(b)(4)(D) of the Act. A duly
scheduled hearing was held before Hearing Officer
William C. Mittendorf on May 28, June 12, and
July 3, 1969. The Employer, Carpenters Local 200
and Local No. 423, International Union of Laborers
of North America, AFL-CIO, hereinafter called
Laborers, 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.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds that
no prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this case, including the
briefs of Carpenters Local 200, Laborers Local 423,
and the Employer, the Board makes the following
findings:'
I. THE BUSINESS OF THE EMPLOYER
Pagura Masonry Contractors, Inc., an Ohio
corporation with its principal office and place of
business in Columbus, Ohio, is engaged in the
erection of masonry as a masonry contractor in the
buliding and construction industry in various parts
of the State of Ohio. During the past 12 months
Pagura Masonry Contractors, Inc. has purchased
and received goods from outside the State of Ohio
valued in excess of $50,000. The parties agree, and
we find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and it will effectuate the policies of the Act to
'Carpenters Local 200's Motion to Quash the Notice of Hearing is
denied for the reasons hereinafter stated
The Mason Contractors Association of America was granted permission
to file an amicus curiae brief which has also been considered
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
209
The parties stipulated, and we find, that
Carpenters Local 200 and Laborers International
Union of North America, Local No. 423,
AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer had a subcontract with
Cunningham-Limp Co., the prime contractor, in
November 1968, to perform the masonry work at
the DeSoto Chemical Co. plant located at New
World Drive and Watkins Drive in Columbus, Ohio.
The Employer is a member of the Masonry
Contractors Association of Columbus, Ohio, which
in turn is affiliated with a national association, the
Masonry Contractors Association of America. The
national association has a collective-bargaining
agreement with the Laborers' International Union
to which the Columbus Association and the
Employer are parties. This agreement provides, in
pertinent part, as follows:
The work jurisdiction covered by this
Agreement when performed by members of the
ASSOCIATION (Employer) shall include the
work which has historically or traditionally or
contractually assigned to members of the
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA in the tending of Masons
including . . . the unloading, erecting, dismantling,
moving and adjustments of scaffolds.
The Employer, pursuant to his agreement with the
Laborers, employed members of Local 423 to erect,
move, dismantle, and adjust metal tubular
scaffolding at the above-mentioned plant. This
agreement does not provide that the signatories
submit jurisdictional disputes to the National Joint
Board for the Settlement of Jurisdictional Disputes,
hereinafter referred to as Joint Board, or abide by
its decisions. The Employer, Pagura Masonry Co.,
Inc., has no collective-bargaining agreement with
Carpenters Local 200.2
Fred D Pagura, President of the Employer,
testified that on or about January 21, 1969, he was
contacted by Ernest E. Plunkett, Business
Representative of the Carpenters Local 200, who
'Fred D Pagura, President of the Employer , is also president and owner
of a separate corporate entity, Fred D Pagura, Inc This latter corporation
is engaged in general sub-contracting, such as concrete forming work and
finished carpentry work, but does not perform any masonry work. This
firm is a signatory to a collective -bargaining agreement between The
Central Ohio Chapter, The Associated General Contractors of America
and Local 200 This latter agreement specifically provides that the parties
thereto shall submit jurisdictional disputes to the Joint Board Carpenters
Local 200's contentions as to the effect of this agreement are discussed
below
179 NLRB No. 36,
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquired as to the assignment of the masonry
scaffolding on the DeSoto plant job. Pagura
informed Plunkett that he had assigned the work to
Laborers (mason tenders, Local 423) in accordance
with his national agreement through the Masonry
Contractors Association, Inc. He further stated that
it was his policy to have mason tenders attend to the
building of scaffolding. Plunkett then told Charles
Ralston, superintendent for Cunningham-Limp who
was present at the time, that the scaffolding over 14
feet was properly carpenters' work and he would
have to see that carpenters were assigned the work.
On January 23, Plunkett again appeared at the
jobsite and insisted that Ralston in Pagura's
presence, submit the question of jurisdiction as to
the scaffolding to the Joint Board. Upon Ralston's
refusal to acquiesce Plunkett told Pagura to take the
question to the Joint Board. Pagura then told
Plunkett he was not stipulated to the Joint Board
and further he had made an assignment and was
satisfied with it. To the latter Plunkett stated "I will
fight it with everything I've got to get this
straightened out." This above-described conversation
took place near the lunchtime, and when Pagura
and Ralston returned from luncheon they found that
the four or five carpenters who were working on the
job had suddenly become "sick" and left the job. On
the following day Cunningham-Limp was unable to
obtain carpenters from the Carpenters Local 200,
and none was referred for about 2 weeks despite
repeated requests.
B. The Work in Dispute
The work in dispute is the erection of steel
tubular section scaffolds above the height of 14 feet
at the DeSoto Chemical Company plant located in
Columbus, Ohio.3
C. The Contention of the Parties
Carpenters Local 200 contends that Pagura
Masonry Contractors, Inc. and Fred D. Pagura,
Inc., are a single Employer, and because of the
latter firm's signing of the AGC agreement, Pagura
Masonry is bound by an award by the Joint Board.
On the latter basis Local 200 argues that all parties
therefore have agreed to submit the dispute to the
Joint Board, and accordingly the Board may not
determine the dispute under Section 10(k) of the
Act.
Laborers Local 423 and the Employer contend
that on the basis of their collective-bargaining
agreement they are not stipulated to the Joint
Board, and that historically laborers (mason
tenders) have performed the type of work in dispute
for the Employer and for other masonry
contractors, members of the Masonry Contractors
'For a detailed description of this type of scaffolding which in the 1930's
began to replace the wooden scaffolding used earlier , see Seedorf Masonry
Co. 173 NLRB No 184
Association in the area. They further contend that
the assignment of the work to laborers by the
Employer was proper because it is more skillfully,
efficiently, and economically performed when done
by laborers
The Employer contends that the Employer and
Fred D. Pagura, Inc., are wholly independent
corporate entities and that each corporate entity
performs work of an entirely different nature, and
each is bound only to the collective-bargaining
agreement it has executed.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which a Section
8(b)(4)(D) charge has arisen. However, before the
Board proceeds with a determination of dispute, it
must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
The record shows that in January 1969, the
Carpenters' business agent at the DeSoto Chemical
plant construction site, where laborers employed by
the Employer were engaging in scaffolding work,
told the Employer that carpenters and not laborers
should perform that work. The Employer responded
that he was satisfied with the assignment to
Laborers. Shortly thereafter, there having been no
reassignment of the work, Carpenters employed by
the prime contractor became "sick" and left the job.
No carpenters were referred to the job for
approximately 2 weeks despite repeated requests.
The record further shows that the Employer in
1968 was involved in two other disputes with the
Carpenters over the use of laborers to perform
masonry scaffolding on projects in Columbus, Ohio.
The Employer, as a masonry subcontractor on both
projects, assigned the scaffolding work to employees
represented by the Laborers. The Carpenters
officials claimed the scaffolding work as work of the
carpenters, upon both projects. On one project when
the Employer informed the Carpenters officials he
would not change his assignment, the general
contractor's carpenters became "ill" for 2 or 3
weeks. The general contractor, in order to get the
carpenters back to work, removed the scaffolding
work from the Employer's subcontract and assigned
the work to carpenters. However, when the
carpenters performed the work the laborers walked
off the job. When the Employer completed his
masonry subcontract the prime contractor
back-charged the Employer $1300 as the cost to the
prime contractor for building the scaffolds with
carpenters. On the other project, after the
Carpenters' claim and the Employer's refusal to
change his assignment, the carpenters walked off the
job and did not return until the general contractor
submitted a request to the Joint Board.
In view of the conduct described above, we find
that there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
UNITED BROTHD. OF CARPENTERS, LOCAL 200 211
the dispute is properly before the Board for
determination under Section 10(k) of the Act.
E. Merits of the Dispute
The Employer, through its membership in the
Masonry Contractors Association, is bound by a
collective-bargaining agreement with Local 423
Laborers International Union which covers all
masonry scaffolding work. The Employer has no
contract with Carpenters Local 200.1
The record discloses that masonry scaffolding is
erected as the masonry work progresses and that the
time spent erecting and dismantling such scaffolding
is minimal. Therefore, the laborers (mason tenders)
assigned to this work are also available to assist
masons, performing such tasks as carrying and
stacking bricks, tending and carrying mortar. The
use of carpenters on scaffolding over 14 feet high
would necessarily require the Employer to hire
carpenters, there being none on its payroll, and
would result in the accumulation of idle time and
increased costs in the production of the work.
Testimony by the Employer and other masonry
contractors compels the conclusion that the
overwhelming practice of this Employer as well as
the industry in Columbus, Ohio, is to assign metal
masonry scaffolding work to laborers.
Other factors usually considered by the Board in
jurisdictional dispute cases provide little assistance
in determining the instant dispute. Neither of the
Unions has been certified. The Joint Board
Decision, relied upon by the Carpenters in support
of its claim, is not binding upon the Employer, who
is unwilling to abide by the Decision. In fact, the
Employer specifically informed the Joint Board by
telegram on February 6, 1969, that he had made no
request for a job decision from the Joint Board nor
authorized such a request since he was not stipulated
to the Joint Board.
It appears from the record that carpenters and
masonry contractors laborers possess the requisite
abilities to do the work.
In view of the foregoing, on the basis of the
record as a whole, and upon appraisal of all relevant
considerations, we believe that the work in dispute
We find without merit the contention of Carpenters Local 200 that the
Fred D Pagura Co , Inc , and the Pagura Masonry Co , Inc are a single
employer and therefore , since Fred D Pagura, Inc , is stipulated to the
National Joint Board, the Employer herein is also bound The record
establishes that while the two corporations are owned and controlled by the
same stockholder , there are different secretaries , they maintain separate
books, bank accounts , payrolls, make their own employment compensation
payments and other deductions , pay separate taxes, have separate
supervisors , employ separate types of employees , (mason tenders -
general laborers ), and' have separate collective -bargaining agreements
negotiated by separate employer associations. From all of the above we
find that the AGC contract is not binding on Pagura Masonry contractors,
Inc Matt J Zaich , 143 NLRB 133
Nor do we find merit in Carpenters Local 200's contention , that the
Carpenters and Laborers have voluntarily agreed , as disclosed by the
record, to two additional methods for the elimination of disputes over
masonry scaffolding The Employer is not a party to such agreements and
cannot be held to be bound thereby
should be awarded to employees represented by
Laborers Local 423. The fact that the Employer's
assignment conforms to its own and area practices
and is consistent with its collective-bargaining
agreement, the fact that laborers employed by the
Employer not only have the requisite skill but are
familiar with all facets of the work, and the
attendant efficiency and economy of operations lead
us to conclude that Employer's assignment of the
work is the proper one. Therefore, we shall
determine the dispute by assigning the work in
question to employees of Pagura Masonry Co., Inc.,
represented by Laborers Local 423.5 In making this
determination, which is limited to the controversy
which gives rise to this proceeding, we are not
assigning the work to Local 423 or its members.6
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 record in this
proceeding, the National Labor Relations Board
hereby makes the following determination of the
dispute.
1. Employees employed by Pagura Masonry Co.,
Inc., who are represented by Laborers International
Union of North America, Local No. 423,
AFL-CIO, rather than carpenters represented by
Local No. 200, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, are entitled to
perform the erection, assembly, and dismantling of
metal tubular scaffolds used in the erection of
masonry walls at the construction site of the DeSoto
Chemical Co., plant in Columbus, Ohio.
2. Local No. 200, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is
not entitled by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the
Employer, Pagura Masonry Co., Inc., to assign the
above work to carpenters represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local No. 200,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, shall notify the Regional
Director for Region 9, in writing, whether it will or
will not refrain from forcing or requiring the
Employer, Pagura Masonry Contractors, Inc., by
means proscribed by Section 8(b)(4)(D), to assign
the work in dispute to carpenters, rather than to
employees of the Employer who are represented by
Laborers'Local 423.
'On the record before us, we find no merit in the Employer's request for
a broad remedial order The request is hereby denied The Masonry
Contractors Association of Columbus , Ohio, Inc , joined the Employer in
the request for a broad remedial order The request is hereby denied as the
Association is not a party herein
'See Porrazzo and Hurley Co, Inc. 177 NLRB No 36, United
Brotherhood of Carpenters and Joiners of America, Local No 213,
AFL-CIO (General Masonry , Inc ). 175 NLRB No 101, United
Brotherhood of Carpenters and Joiners , Local No 153 (Blount Bros
Corporation ), 175 NLRB No 81