United Brotherhood of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Apr 13, 1965

151 N.L.R.B. 1657 (N.L.R.B. 1965)

UNITED BROTHERHOOD OF CARPENTERS, ETC. 1657
required tax withholdings; and also, in the case of Leroy Jordan, additional undeter-
mined amounts which may have accumulated or which may accumulate on and
since October 1, 1964, until said Leroy Jordan is offered full reinstatement to his
former or a substantially equivalent position in accordance with the requirements
of the Board Order and court decree herein; and that the Regional Director for
Region 12 be authorized to take appropriate steps consistent with the findings and
conclusions hereinabove set forth, without prejudice to the conduct of additional
backpay proceedings.
United Brotherhood of Carpenters and Joiners of America, Local
1061, AFL-CIO ; Central Arizona District Council of Carpen-
ters, AFL-CIO and Packer Construction Company
United Brotherhood of Carpenters and Joiners of America, Local
10S9, AFL-CIO; Central Arizona District Council of Carpen-
ters, AFL-CIO, and R . E. Barrett 1 and Klaas Brothers, Inc.'
Cases Nos. 08-CD-58 and 28-CD-59. April 13, 1965
DECISION AND DETERMINATION OF DISPUTES
This is a consolidated proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, following charges
filed by Packer Construction Company (Case No. 28-CD-58) and
Klaas Brothers, Inc. (Case No. 28-CD-59), alleging that Carpenters
Locals 1061 and 1089, respectively, and Central Arizona District
Council of Carpenters, AFL-CIO, herein called the Respondents,
had induced and encouraged employees to strike for the purpose of
forcing or requiring subcontracting employer Gray Plastering Com-
pany, Inc. (Case No. 28-CD-58), herein called Gray, and employer
Klaas Bros., Inc., to assign particular work to members of the Re-
spondents rather than to members of Wood, Wire & Metal Lathers'
International Union, Local 374, AFL-CIO, herein called Lathers.
A consolidated hearing was held before Hearing Officer Lewis S.
Harris on September 23, 24, 25, 26, and 28, 1964. All parties ap-
peared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error and are hereby
affirmed. The Respondents, the Lathers and Klaas Bros., Inc., and
Gray jointly, filed briefs which have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Brown].
1 R. E. Barrett is secretary-treasurer of Central Arizona District Council of Carpenters,
AFL-CIO.
=' The Employer's name appears as amended at the hearing
151 NLRB No. 156.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in these cases, the Board makes the follow-
ing findings :
1. The businesses of the Employers.
Packer Construction Company, herein called Packer, is engaged
in the business of general contracting in several States of the United
States, including the State of Arizona. At all times material
herein it was engaged in, and is engaging in, the construction of
the Marcus J. Lawrence Memorial Hospital at Cottonwood, Arizona,
pursuant to a contract valued in excess of $1 million. During the
12-month period preceding the hearing, Packer purchased materials,
supplies, and equipment directly from outside the State of Arizona
costing more than $50,000.
Gray Plastering Company, Inc., is a lathing and plastering con-
tractor in several States of the United States, including the State
of Arizona, and at all times material herein has been engaged as
a subcontractor for installation of metal wall studs and drywall on
the construction of the Marcus J. Lawrence Memorial Hospital at
Cottonwood, Arizona, pursuant to a subcontract valued in excess of
$100,000. During the. 12-month period preceding the hearing, Gray
purchased materials, supplies, and equipment valued in excess of
$50,000 from suppliers in the State of Arizona, who in turn pur-
chased and received said materials, supplies, and equipment directly
from outside the State of Arizona.
Central Towers Building, Inc., at all times material herein has
been engaged in the costruction of a new office building in Phoenix,
Arizona, valued in excess of $2 million. In connection with the
construction of said building, Central Towers Building,, Inc., award-
ed the contract for the construction of the building to Southern
Builders of Arizona, Inc., a wholly owned subsidiary of Southern
Builders, Inc., of Memphis, Tennessee. In connection with the
construction of said building, Southern Builders of Arizona, Inc.,
purchased materials, supplies, and equipment directly from outside
the State of Arizona valued in excess of $100,000, and awarded the
contract for the installation of metal studs and drywall to Klaas
Bros., Inc.
E-laas Bros., Inc., a plastering, drywall, and painting contractor,
has its principal office in Phoenix, Arizona. During the 12-month
period preceding the hearing, Klaas Bros., Inc., purchased and re-
ceived materials, supplies, and equipment directly from outside the
State of Arizona valued in excess of $50,000.
The parties stipulated to the facts as set forth above, and further
stipulated that these named Employers are engaged in commerce
within the meaning of the National Labor Relations Act, is amended.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 1659
We find that Packer Construction Company, Gray Plastering Com-
pany, Inc., Southern Builders of Arizona, Inc., and Klaas Bros.,
Inc., are engaged in commerce within the meaning of the Act.
2. The labor organizations involved.
Respondents and the Lathers are labor organizations within the
meaning of Section 2 (5) of the Act.
3. The dispute.
The Work in Issue
Metal studs used in the erection of interior walls or partitions
receive a surface of either plaster or drywall material. The work in
dispute here is the installation of metal studs which are to receive
drywall material.
The Basic Facts
In connection with the construction of the Marcus J. Lawrence
Memorial Hospital at Cottonwood, Arizona, general contractor
Packer subcontracted the installation of metal wall studs and dry-
wall to Gray. In connection with the construction of the new office
building in Phoenix, Arizona, general contractor Southern Builders
of Arizona, Inc., subcontracted the installation of metal studs and
drywall to Klaas Bros., Inc. Contract specifications called for
installation of nailable or screwable steel studs to be covered by
drywall materials. The studs are installed by placing metal tracks
on floors and ceilings, into which vertical steel studs are placed and
secured in position with screws, or nails, after which the covering
material is applied with either nails, screws, clips, or wires.
Employer Gray has a collective-bargaining agreement with the
Lathers, and does not employ carpenters. During the early part
of July 1964,3 Gray assigned the installation of metal studs to
receive drywall materials to its own employees who were represented
by Lathers Local 374. In the latter part of July, representatives
of Respondent Locals 1061 and 1089 met with Floyd Packer of
Packer Construction Company and demanded the metal stud work
which had been subcontracted to Gray, stating that Local 1061
would picket if the Lathers continued the work. No demand was
made upon Gray. On or about July 29, Respondent Local 1061
began to picket the project, and all but the lathers employed by
Gray left the job.
Sometime early in July, Klaas Bros., Inc., began the installation
of metal studs to receive drywall materials at the Central Towers
project. This was the first time that Klaas Bros., Inc., had received
a contract for such work, and it began the job using two carpenters
and two lathers. On or about July 30, a representative of Respond-
3 All dates herein refer to 1964.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent Local 1089 visited the project and spoke to Robert Campbell
and William Stoll, officers of Klaas Bros., Inc. The representative
told Campbell and Stoll that the Carpenters was entitled to the
work pursuant to a 1960 craft agreement between Lathers Local 374
and the Central Arizona District Council of Carpenters, and that, if
Klaas Bros., Inc., did not assign the work exclusively to the Carpen-
ters, Local 1089 would have to "take action." It was pointed out
to Campbell and Stoll that Local 1061 had picketed the Marcus J.
Lawrence Memorial Hospital project on the same issue Klaas Bros.,
Inc., invited Lathers Local 374 and Carpenters Local 1089 to meet
with a representative of the Arizona Building Contractors Associa-
tion in an attempt to resolve the dispute. Local 1089 did not appear
at the meeting, at which Lathers Local 374 informed Klaas Bros.,
Inc., that the 1960 agreement had been repudiated. Klaas Bros.,
Inc., thereupon made a written assignment of the disputed work to
employees represented by Lathers Local 374, and so notified the
Carpenters, in writing. On August 7, a few days after this assign-
ment had been made, the metal stud work on the Central Towers
project started again, using employees represented by Lathers Local
374 for the work. On August 10, the Carpenters began to picket the
project. All employees other than the lathers employed by Klaas
Bros., Inc., left the job; the lathers continued to install the metal
studs.
Contention of the Parties
Respondents claim the disputed work on the basis of a 1960
agreement between Lathers Local 374 and the Central Arizona
District, Council of Carpenters which, assertedly, is still in effect
and awards work of the type in dispute to the Carpenters. They also
rely upon the 1962 Arizona master labor agreement, by which all
parties to the instant case are bound, and to a limited extent upon
language in a 1962 agreement between Lathers Local 374 and the
Arizona Consolidated Masonry and Plastering Contractors Associa-
tion. Respondents also rely upon certain decisions of the National
Joint Board for Settlement of Jurisdictional Disputes, and further
contend that their claim is supported by area and industry practice,
and that installation of metal studding to receive drywall covering
is a traditional function of carpenters.
The Lathers contends that it has repudiated the 1960 agreement
relied upon by the Respondents, and that the Arizona master labor
agreement does not bind the employers signatory to that agreement
to any agreement between the Lathers and Carpenters. It further
points out that the 1960 agreement has not been followed in the
area by employers in assigning the type of work in dispute, and that
the employers herein were not parties to that agreement and did not
UNITED BROTHERHOOD OF CARPENTERS, ETC. 1661
consider themselves bound by its terms. The Lathers also relies
upon area and industry practice to support its claim to the work,
and contends that installation of steel studding is an integral and
traditional part of the lathers trade which should be performed by
lathers regardless of the type of material to be attached to the
studs.
Employer Gray states that the work has been assigned to lathers
because he has consistently assigned such work over the years to
Lathers and because he does not employ carpenters. Employer
Klaas Bros., Inc., although it does employ carpenters, and indeed
began the instant job using a composite crew of lathers and carpen-
ters to perform the work in dispute, states that it was satisfied that
the 1960 agreement between the Lathers and Carpenters had been
abrogated and thus assigned the work to lathers. Both Employers
state that since the work of installing the floor and ceiling tracks
is undisputedly the work of the lathers, it would be both more
costly and more wasteful of time to assign the work of installing
the metal studs to anyone other than the lathers, who are at least
as capable as the carpenters of performing the job; and further
state that their collective-bargaining agreements with the Lathers
require the assignment of the work to that union. Employer Gray
further points out that, since he employs no carpenters, it would be
most inefficient to replace the lathers for only one part of an integral
operation, as the disputed work is intermittent and the lathers on the
job can perform the work when not otherwise occupied.
Applicability of the Statute
Charges herein allege violations of Section 8(b) (4) (D) of the
Act. The record shows, and Respondents do not deny, that, on
or about July 29, after Employer Gray had begun the installation
of metal studs using the lathers, and after General Contractor
Packer had refused to comply with demands of the Carpenters,
Respondent Local 1061 began to picket the hospital project at
Cottonwood with signs which read: "LATHERS UNFAIR TO
AGREEMENT WITH CARPENTERS LOCAL 1061, and
"PICKET CONTRACTOR GRAY PLASTERING COMPANY
IN VIOLATION OF AGREEMENT. CARPENTERS LOCAL
1061." With the exception of the lathers employed by Gray, the
entire job was shut down. The record further shows similarly
that on or about August 10, after Employer Klaas Bros., Inc., had
begun to use only lathers in the installation of metal studs, and
after it had refused to comply with the demands of the Carpenters,
Respondent Local 1089 began to picket the Central Towers project
in Phoenix with signs which read: "PICKET CONTRACTOR
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KLAAS BROS. IN VIOLATION OF AGREEMENT DISTRICT
COUNCIL OF CARPENTERS." With the exception of the
lathers employed by Klaas Bros., Inc., the entire job was shut down.
Respondents concede, for the purposes of this proceeding, that
there is reasonable cause to believe that violations of Section
8(b) (4) (D) have occurred.
We find that there is reasonable cause to believe that violations
of Section 8(b) (4) (D) have occurred and that the disputes are
properly before the Board for determination under Section 10(k)
of the Act.
Merits of the Disputes
Section 10(k) of the Act requires the Board to make an affirma-
tive award of the disputed work, after giving due consideration to
various relevant factors. The following factors are asserted in
support of the claims of the parties herein :
1. Collective-bargaining agreements: Lathers and Employers
Gray and Klaas Bros., Inc., have collective-bargaining agreements
covering the employees to whom the Employers have assigned the
work in dispute. Respondents have no contracts with either Em-
ployer, and Employer Gray has never employed carpenters. Lathers
contends that its agreements with the Employers specifically cover
the work in dispute. However, the Board has heretofore considered
similar contract language 4 and held that, although it refers to the
installation of certain metal studs, it does not treat specifically with
metal studs which are to receive a drywall covering.
2. Company, area, and industry practice : Although the Lathers
and the Carpenters offered considerable evidence on area and in-
dustry practice, the results of their efforts are inconclusive. As
Employer Gray has never employed carpenters and has used
lathers exclusively for installing metal studs, the assignment of this
work to the lathers is in accord with his past practice. As this was
the first time that Employer Klaas Bros., Inc., was performing under
a contract to install metal studs, it has no past practice. However,
because the license of Klaas Bros., Inc., to do such lathing work
was obtained only by virtue of having hired Robert Campbell, vice
president of Klaas Bros., Inc., the Lathers noted that Campbell,
who had operated his own lathing and plastering business in the
Phoenix area since 195t, had without exception assigned the work
of installing metal studs to receive drywall covering to lathers.
3. Efficiency of operation: Although it is not contended that
either lathers or carpenters lack the ability to erect metal studs,
the Lathers points out that it has a long apprenticeship program
!Local 964 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO
(Robert A . W. Carleton, d/b/a Carleton Brothers Company ), 141 NLRB 1133.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 1663
for training lathers to install metal studs, while the Carpenters has
no such program. Respondents do not claim the right to install
all steel studs to be used in the building of the projects; their
demand is limited only to such steel studs as will receive a drywall
covering. In addition, Respondents do not lay claim to the installa-
tion of either the floor and ceiling runners to which the studs are
attached. or to the furring channels which are inserted into and
across the steel studs. Performance of the disputed work by Re-
spondents would, therefore, necessitate the division of the entire
operation of preparing a wall area for its finishing covering between
two craft groups with one installing the runners and furring, and
the other installing only the studs in each partition designed to
receive drywall covering. Although the Carpenters contends that
the disputed work can be performed more efficiently by carpenters
because they will also be attaching the drywall covering to the studs,
the record indicates that Empoyer Gray has never employed its
own carpenters and that Employer Klaas Bros., Inc., has subcon-
tracted the work of installing drywall covering. Clearly, the in-
stallation of floor and ceiling tracks, metal studs, and bracing
material is more efficiently performed as a continuous, integrated
operation by a single craft group. The Employer's assignments of
the disputed work to lathers are therefore consistent with efficiency
of operation in the erection of interior partitions and studding
to receive drywall covering.
4. Action of the Joint Board: There are numerous decisions of
the National Joint Board of Jurisdictional Disputes which tend to
support the claims of each of the rival unions to the disputed work.
5. The 1960 Agreement, Arizona Master Labor Agreement, and
Arizona Consolidated Masonry and Plastering Contractors Associ-
ated Agreementt : The Respondents rely heavily upon a July 22,
1960, agreement between Central Arizona District Council of Car-
penters and Lathers Local 374, which grants to the Carpenters
"The installation of metal studs, nailable or non-nailable, to receive
materials other than lath material and plaster. . ." The Respondents
contend that this agreement, which the Lathers contends has in fact
been abrogated, should be dispositive of the instant dispute. The
agreement was to remain in effect until the Lathers' and Carpenters'
Internationals arrived at an agreement covering the same work.
The record indicates that the International's presidents recognized
the agreement for a time at least and that the Lathers International
president at the time the agreement was signed, Lloyd A. Mashburn,
as of June 23, 1961, instructed Local 374's representatives that the
agreement was still in effect. The Lathers assert that the Carpen-
5 These jobs are the work of the Lathers
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters' International president notified all Carpenters locals some-
time in November 1962 that, by vote of its executive council on No-
vember 8, 1962, all local and district agreements previously entered
into were no longer to be considered in effect. It further asserts
that from at least as far back as that action by the Carpenters,
the parties to the 1960 agreement have not been living up to the
terms of the agreement. In any event, the record shows that Mr.
Mashburn's successor, Sal Maso, notified Local 374 on June 1, 1964,
that the agreement was no longer in effect.
The Carpenters contends that the agreement had not been
abrogated when the disputed work began, and that, even assuming it
can be abrogated simply by proclamation of one party, the Car-
penters at least had not been given notice of abrogation before the
assignment of the disputed work, and hence the agreement should
be held to be valid and determinative of the dispute herein. Al-
though it is not clear from the record exactly when the Lathers
ceased giving effect to the 1960 agreement, or exactly when the
Carpenters first received notice of abrogation, it is clear that the
agreement had not been honored for some time prior to the instant
dispute, since numerous instances are cited in which lathers in the
Phoenix area have been performing the same work as that herein
in dispute.6
The Carpenters contends that the Arizona master labor agreement
of 1962, by which the Employers herein are bound, requires those
Employers to make assignments of disputed work in accord with
agreements between the parties such as the 1960 agreement herein,
relying specifically on "Carpenters Working Rule No. 28." The
Lathers, on the other hand, asserts that such rule does not constitute
a commitment on the part of the employer-signatories to be bound by
the terms of any such interunion agreement, but only an agree-
ment that, should there be a strike against any employer who has
made an assignment not in keeping with an agreement between the
Carpenters and any other union, that employer shall not hold the
Carpenters responsible for said strike.
The Carpenters further claims that Lathers Local 374, by its
1962 agreement with the Arizona Consolidated -Masonry and Plaster-
ing Contractors Association, indirectly agreed to honor the 1960
agreement. The clause relied on in that 1962 agreement simply
states that disputes between crafts affiliated with the AFL-CIO
shall be settled in a manner agreeable to the unions themselves.
The 1960 agreement is only one of the factors the Board must
consider in deciding who is entitled to the disputed work. In deter-
" Moreover, Local 1061 Is not signatory to this 1960 agreement , nor is it a member of
the Central Arizona District Council of Carpenters.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 1665
mining how much weight it is to be given, we note that although
much of the testimony with respect to it is contradictory, it is
uncontraverted that other employers in the Phoenix area have been
making assignments without regard to it, and without complaint
from either the Lathers or the Carpenters until this case. More-
over, none of the Employers herein was bound by the 1960 agreement.
Conclusion as to the Merits of the Disputes
Upon consideration of all pertinent factors, we shall assign the
work in dispute to lathers. They are at least as skilled in the per-
formance of the work as the carpenters who compete for it, and they
have been performing it to the satisfaction of the Employers who
assigned the work to them and who desire to retain them on the
job. The assignment of the disputed work to the Lathers is con-
sistent with their collective-bargaining agreements with Employers
Gray and Klaas Bros., Inc., it conforms in the case of Gray, and is
not inconsistent in the case of Klaas Bros., Inc., to the Employers'
past practice, and it is not inconsistent with area praatice. The
lathers are well trained for the work by virtue of their complete
and specialized apprenticeship program, and the efficiency with
which they may accomplish the integrated task of preparing parti-
tions for final covering in a single operation supports their claim
to the disputed work. We conclude that the Employers' assignment
of the work to the lathers should not be disturbed. We shall, ac-
cordingly, determine the existing jurisdictional dispute by deciding
that lathers, rather than carpenters, are entitled to the work in
dispute. In making this determination, we are assigning the dis-
puted work to the employees of Employers Gray and Klaas Bros.,
Inc., who are represented by the Lathers, but not to that Union or
its members.'
7 We find this case to be clearly distinguishable from the recently issued case in
The Walter Corporation , 151 NLRB 741 , in which we awarded to employees represented
by the Carpenters work identical to that in dispute herein , despite the employer ' s assign-
ment to the Lathers. However, that assignment was found to be contrary not only
to past industry practice in the Little Rock, Arkansas , area, but also to the past prac-
tice of the employer, which for 3 years had been employing carpenters exclusively to
perform the work. A further basis for the Board's decision in the Walter case was a
1961 agreement between the Carpenters and the Lathers , embracing the State of Arkansas,
which awarded the disputed work to the Carpenters . Despite the contention of the
Lathers that it had abrogated that agreement before the employer ' s assignment, the
Board accorded some weight to it because most subcontractors in the Little Rock area
have abided by its terms In the instant case , contrary to the Walter case, the assign-
ments by the Employers of the disputed work to Lathers are in accord with signed
agreements with the Lathers , are not inconsistent with either industry practice in the
area or with the practice of the Employers , and the record shows that other employers
in the Phoenix area have been making assignments to Lathers . As to the 1960 agree-
ment , the record suggests that it had been abrogated by both the Carpenters and the
Lathers.
783-133-66-vol 151-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTES
Pursuant to Section 10(k) of the National Labor Relations Act,
and upon the basis of the foregoing findings and the entire record
in this proceeding, the National Labor Relations Board makes
the following Determination of Disputes.
1. Lathers employed by Gray Plastering Company, Inc., and by
Klaas Bros., Inc., who are represented by Wood, Wire and Metal
Lathers International Union, Local 374, AFL-CIO, are entitled to
perform the work of erecting metal studs to receive drywall
material on interior partitions in the Marcus J. Lawrence Memorial
Hospital at Cottonwood, Arizona, and in the Central Towers office
building in Phoenix, Arizona, respectively.
2. Central Arizona District Council of Carpenters, AFL-CIO,
United Brotherhood of Carpenters and Joiners of America, Local
1061, AFL-CIO, United Brotherhood of Carpenters and Joiners of
America, Local 1089, AFL-CIO, and R. E. Barrett, are not entitled,
by means proscribed by Section 8(b) (4) (D) of the Act, to force or
require the Employers to assign the above work to carpenters.
3. Within 10 days from the date of this Decision and Determina-
tion of Disputes, Central Arizona District Council of Carpenters,
AFL-CIO, United Brotherhood of Carpenters and Joiners of Amer-
ica, Local 1061, AFL-CIO, United Brotherhood of Carpenters and
Joiners of America, Local 1089, AFL-CIO, and R. E. Barrett, shall
notify the Regional Director for Region 28, in writing, whether
they will or will not refrain from forcing or requiring the Employ-
ers, by means proscribed by Section 8(b) (4) (D), to assign the work
in dispute to carpenters rather than lathers.
Chicago Typographical Union No. 16 and Alden Press, Inc.
Chicago Stereotypers Union No. 4 and Alden Press, Inc. Cases
Nos. 16-CC-404 and 13-CC-405. April 14, 1965
DECISION AND ORDER
On May 19, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled cases, finding that the Respondents
had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that they cease and desist therefrom
and take certain affirmative action. The Trial Examiner further
found that the Respondents had not engaged in certain other
unfair labor practices alleged in the complaint and recommended
that the complaint be dismissed with respect to the latter allega-
151 NLRB No. 152.