United Brotherhood of Carpenters

National Labor Relations Board - Board Decisions

Nov 23, 1970

186 N.L.R.B. 704 (N.L.R.B. 1970)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania, AFL-CIO and Siciliano Brothers
Inc. and Laborers ' International Union of North
America, Local Union No. 833, AFL-CIO. Case
6-CD-337
has performed services outside the Commonwealth of
Pennsylvania valued in excess of $50,000. According-
ly, we find that Siciliano Brothers Inc. 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 to assert jurisdiction herein.
November 23, 1970
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 Siciliano Brothers Inc., herein called
the Employer , alleging that United Brotherhood of
Carpenters and Joiners of America , Carpenters
District Council of Western Pennsylvania , AFL-CIO,
herein called Carpenters , had violated Section
8(b)(4)(D ) of the Act by engaging in certain pros-
cribed activity with an object of forcing or requiring
the Employer to assign the work in dispute to
Carpenters rather than to employees of the Employer
represented by Laborers' International Union of
North America , Local Union No. 833 , AFL-CIO,
herein called Laborers. Pursuant to notice , a hearing
was held before Hearing Officer Samuel S . Blaufeld
on August 4 and 5, 1970. 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 . Thereafter,
briefs were filed by Carpenters and Laborers.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in connec-
tion 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 they are
free from prejudicial error . They are hereby affirmed.
The Board has considered the entire record in this
case, including the briefs , and hereby makes the
following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Siciliano Brothers Inc. is
engaged as a lathing and plastering contractor in the
construction industry, with its principal office in
Pittsburgh, Pennsylvania. During the past 12 months,
the Employer has received, directly from points
outside the Commonwealth of Pennsylvania, goods
and materials valued in excess of $50,000 for use at
construction projects within the Commonwealth of
Pennsylvania. During that same period, the Employer
186 NLRB No. 115
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Carpenters
and Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
111. THE DISPUTE
A. The Background Facts
The Employer entered into a contract with Coco
Brothers, a general contractor, to perform lath and
plaster work on an apartment project, Ambridge
Towers, being constructed in Ambridge, Pennsylvania.
The 1 contract includes a requirement that i the
Employer erect an exterior metal scaffolding, approx-
imately 80 feet in height, to afford staging for lathers
and plasterers employed by the Employer and to be
used as a place for temporary storage of the
Employer's supplies. The disputed work was assigned
to employees of the Employer represented by Labor-
ers on June 23, 1970.
The Employer is a member of the Contracting
Plasterers' and Lathers' International Association
(CPLIA), which has a collective-bargaining agree-
ment with Laborers' International Union of North
America, AFL-CIO. The Employer adopted and
signed this agreement on April 27, 1970, prior to its
assignment of the work in dispute. Article III of the
agreement provides, in part:
The work jurisdiction covered by this Agree-
ment, when performed by the Employer shall
include that work which has been historically or
traditionally or contractually assigned to members
of the Laborers' International Union of North
America, including but not limited to the unload-
ing, erecting, dismantling, moving and adjustment
of scaffolds . .
The Employer is also a member of the Employing
Plasterers' Association of Allegheny County. Mem-
bers of the association are bound to a collective-
bargaining agreement with the Laborers' District
Council of Western Pennsylvania, which includes a
provision recognizing as laborer work:
"Building of all scaffolds up to fourteen feet (14)
This agreement expired on May 31, 1970, but the
Employer's vice president, Vincent Siciliano, testified
that the agreement remained in effect at the time of
the assignment of the disputed work through oral
UNITED BROTHERHOOD OF CARPENTERS 705
agreement pending renegotiation . That agreement is
silent regarding erection of scaffolds greater than 14
feet in height . The Employer has no collective-
bargaining agreement with Carpenters and does not
employ individuals represented by Carpenters.
Uncontradicted testimony by Caraway Houston,
the Employer ' s labor steward at the Ambridge
project , establishes that on the day after the Employ-
er's laborer employees began to erect and assemble
the scaffolding , about seven employees , represented
by Carpenters and employed by other contractors at
the jobsite , sat on the scaffold , preventing the
employees of the Employer from performing their
assigned work . Houston further testified that the
steward for the general contractor 's employees repre-
sented by Carpenters told him that if the laborers
attempted to erect the scaffold , the carpenter employ-
ees would walk off the job . Work on the erection of
the scaffold was thereafter suspended for a short while
until a temporary injunction against Carpenters was
obtained . The work was in progress , as originally
assigned , at the time of the hearing.
B. Work in Dispute
The work in dispute here is the erection of tubular
steel scaffolding above the height of 14 feet at the
Ambridge Towers apartment project in Ambridge,
Pennsylvania.
C. Contentions of the Parties
The Employer announced at the hearing that it was
assuming a neutral position in regard to which labor
organization had the superior claim to the work in
dispute. Vice president Siciliano did testify , however,
to the effect that the Employer assigned the work to its
laborer employees pursuant to the agreement between
CPLIA and Laborers International , and because the
Employer found it an economical practice. Both
Siciliano and Houston stated that little skill or
training was necessary to satisfactorily erect scaffold-
ing.
Carpenters claims that the work should properly be
assigned to individuals represented by it. In support, it
argues that both industry and area practice call for
carpenters to perform any scaffolding erection in
excess of 14 feet . Additionally, Carpenters argues that
considerations of skill and safety favor an award of
the disputed work to it, as does a long series of
National Joint Board decisions , including the land-
mark 1920 award published in the "Green Book."
Laborers contends that the Employer 's assignment
to employees represented by Laborers is appropriate
and should not be disturbed . It argues that its
members possess sufficient skills to perform the work
satisfactorily; that the Employer has consistently
assigned the erection of scaffolding to laborer
employees ; and that the area practice of lathing and
plastering contractors is consistent with the Employ-
er's assignment to laborers . Laborers also argues that
the Employer has never agreed to be bound by
determinations of the National Joint Board and,
accordingly, its awards are of no weight in these
proceedings.
D. Applicability of the Statute
Before the Board may proceed 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 indicates that individuals represented by
Carpenters sat on the scaffolding, preventing employ-
ees of the Employer from performing their assigned
work. Further, uncontradicted testimony established
that Carpenters' steward at the jobsite told the
Employer's foreman that carpenter employees would
walk off the job if laborers continued to perform the
disputed work. On this evidence and testimony, we
conclude that there is reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred.
In the circumstances of this case , we are not
satisfied that at times here material all parties have
agreed to be bound by determinations of work
jurisdiction made by the National Joint Board.
Neither the Contracting Plasterers' and Lathers'
International Association's contract nor the local area
agreement provide for the submission of jurisdictional
disputes to the Joint Board. Moreover, the Employer
was not a participant in a Joint Board proceeding.
Thus, at all times material herein, no binding
commitment to abide by determinations of the Joint
Board was in effect. Under these circumstances, we
find that it will effectuate the policies underlying
Sections 10(k) and 8(b)(4)(D) for us to determine the
merits of the dispute. Accordingly, we find that the
instant dispute is appropriate for resolution under
Section 10(k) of the Act.
On the basis of the entire record, we 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.
E. 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 concern to various relevant factors.' The Board
has held that its determination in a jurisdictional
i N L R B v Radio and Television Broadcast Engineers Union , Local Broadcasting System), 364 U S 573
1212, international Brotherhood of Electrical Workers, AFL-CIO (Columbia
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute is an act of judgment based upon considera-
tions of commonsense and experience, reached by
balancing those factors involved in a particular case.2
The following factors are relevant in making a
determination of the dispute before us:
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified by the Board nor is there evidence
indicating that a Board certification covers the
disputed work.
The Employer is a member of the Contracting
Plasterers' and Lathers' International Association,
which has a current collective-bargaining agreement
with the Laborers' International Union of North
America, with which Laborers is affiliated. The
Employer has no contract with Carpenters. Pursuant
to the aforesaid agreement, the Employer has as-
signed employees represented by Laborers to perform
the erection of scaffolding.
2. Company and area practice
The Employer's vice president testified that it was
not normally required to erect scaffolds in excess of 14
feet . Richard Ostrom , another plastering and lathing
contractor in the area , testified that he has always
assigned the work of erecting and dismantling tubular
steel scaffolding to employees represented by Labor-
ers, including projects where the height of the scaffold
exceeded 14 feet . Carpenters demonstrated that the
general area practice in the construction industry is to
employ carpenters to construct scaffolds ; they offered
no evidence sufficient to rebut Ostrom 's testimony
that the practice in the plastering and lathing trade
was to utilize employees represented by Laborers for
all scaffolding construction.
3. Skills, efficiency and economy
While it appears from the record that scaffolds of
significant height often present a problem in regard to
their engineering, the construction phase is essentially
a mere assembly operation requiring neither special
skills nor tools.3 Both carpenters and laborers possess
the requisite abilities to perform the work, and the
Employer is apparently satisfied with the skills and
safety performance of its laborer employees. The
Employer has testified that it is more efficient and
economical to assign the work to members of
Laborers.
F. Conclusions
Having considered all pertinent factors present
herein, we conclude that employees represented by
Laborers are entitled to perform the work in dispute.
This assignment is compatible with the collective-
bargaining agreement between Laborers and the
Employer. Moreover, the assignment appears consist-
ent with the practice of area plastering and lathing
contractors. In addition, members of Laborers pos-
sess sufficient skills to perform the disputed work and
the Employer has been satisfied with their perform-
ance. We conclude from all of the foregoing that the
Employer's assignment of work to employees repre-
sented by Laborers should not be disturbed. On the
basis of the entire record, therefore, we shall deter-
mine the existing jurisdictional controversy by award-
ing to the employees of the Employer represented by
Laborers, rather than to individuals represented by
Carpenters, the work of erecting tubular steel scaf-
folding beyond 14 feet in height. In making this
determination, we are assigning the disputed work to
the employees of Siciliano Brothers Inc. who are
represented by Laborers, but not to that Union or its
members.4
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 case,
the National Labor Relations Board hereby makes
the following determination of dispute:
1. Employees of Siciliano Brothers Inc., who are
currently represented by Laborers' International
Union of North America , Local Union No. 833,
AFL-CIO, are entitled to perform the work of
erecting all tubular steel scaffolding where the height
of the scaffolding exceeds 14 feet at the Ambridge
Towers apartment project , Ambridge , Pennsylvania.
2. United Brotherhood of Carpenters and Joiners
of America , Carpenters District Council of Western
Pennsylvania , AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force or
require Siciliano Brothers Inc., to assign such scaf-
folding work to carpenters represented by United
Brotherhood of Carpenters and Joiners of America,
Carpenters District Council of Western Pennsylvania,
AFL-CIO.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Brotherhood
of Carpenters and Joiners of America, Carpenters
District Council of Western Pennsylvania , AFL-CIO,
2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. and Joiners of America, Local No. 213, AFL-CIO (General Masonry Inc.)
A. Jones Construction Co.), 135 NLRB 1402. 175 NLRB No. 101.
3 For a detailed description of the skills and tools necessary to the 4 On the record before us , we find no merit in Laborers' request for a
erection of tubular steel scaffolding, see United Brotherhood of Carpenters broad Remedial Order. Such request is hereby denied.
UNITED BROTHERHOOD OF CARPENTERS 707
shall notify the Regional Director for Region 6, in hood of Carpenters and Joiners of America, Carpen-
writing, whether or not it will refrain from forcing or ters District Council of Western Pennsylvania,
requiring the Employer , by means proscribed by AFL-CIO, rather than to employees represented by
Section 8 (b)(4)(D) of the Act, to assign the work in Laborers' International Union of North America,
dispute to carpenters represented by United Brother- Local Union No. 833, AFL-CIO.