Wood, Wire & Metal Lathers, Etc., Local 238

National Labor Relations Board - Board Decisions

Sep 16, 1964

148 N.L.R.B. 1119 (N.L.R.B. 1964)

WOOD , WIRE & METAL LATHERS, ETC ., LOCAL 238 1119
herein was unprotected activity because it was in violation of the
collective-bargaining agreement providing for the settlement of dis-
putes exclusively and finally by compulsory arbitration . A decision
to the contrary would frustrate the basic policy of national labor legis-
lation which is to promote a peaceful arbitral process as a substitute
for an older regime of industrial conflict.'
The Trial Examiner concluded , however, that Respondent condoned
any breach of contract involved in the walkout . Accepting the Trial
Examiner's finding of facts in this regard, we must disagree with his
conclusion that such conduct on the part of Respondent 's labor rela-
tions consultant in demanding that the Union "get those men back to
work" warrants a finding of condonation . Condonation necessarily
contains the elements of foregiveness and an intention of treating the
employees as if their misconduct had not occurred . We find, contrary
to the Trial Examiner , no substantial evidence to support a finding of
employer condonation here.
In sum, we conclude that Respondent discharged the 16 employees
because they engaged in a walkout which was not protected by the
Act.10 Accordingly , we find that Respondent did not thereby violate
Section 8 ( a) (3) and ( 1) of the Act.
[The Board dismissed the deferred Section 8(a) (3) and 8(a) (1)
allegations of the complaint.]
9 See United Steelworkers v. Warrior f Gulf Nov. Co ., 363 U S. 574.
"In view of our conclusion that Respondent did not violate the Act in discharging its
employees for engaging in an unprotected walkout, it follows that the threat to discharge
them for participating in such activity did not violate Section 8 ( a) (1) of the Act.
Accordingly , we dismiss the remaining Section 8 ( a)(1) allegations in the complaint
See Dubo Manufacturing Corporation, 142 NLRB 812 , footnote 3
On February 25, 1963, the Respondent filed a motion to consolidate the instant cases
with Case No 8-CA-2882 , and that the Board consider the records of the three cases as
a whole and render its decision accordingly . Subsequent to the issuance of the Decision
and Order of May 17, 1963 , disposing of the 8 ( a) (5) and ( 1) allegations in this proceed-
ing, the Respondent renewed - its motion to consolidate , and requested that the complaints
be dismissed in their entirety . As it appears that the complaint in Case No 6-CA-2882
alleges new unfair labor practices which may properly be litigated in that case , the mo-
tions to consolidate are hereby denied. See General' Tire and Rubber Company, 135
NLRB 269.
Wood, Wire, and Metal Lathers International Union , Local No.
238, AFL-CIO and Fiberglas Engineering & Supply Division,
Owens-Corning Fiberglas Corporation. Case No. 28-CD-54.
September 16, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a 'proceeding pursuant to Section 10(k) of the Act follow-
ing charges under Section 8(b) (4) (D) of the Act filed by Fiberglas
148 NLRB No. 110.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineering & Supply Division, Owens-Corning Fiberglas Corpora-
tion (herein called Fiberglas or the Employer), alleging that Wood,
Wire, and Metal Lathers International Union, Local No. 238, AFL-
CIO (herein called Lathers) had induced and encouraged employees
to strike for the purpose of forcing or requiring Fiberglas to assign
particular work to members of Lathers rather than to members of
United Brotherhood of Carpenters and Joiners of America, Local
No. 1319, AFL-CIO (herein called Carpenters). A hearing was held
before Hearing Officer Fred W. Davis, on June 3, 4, and 5, 1964. All
parties appeared 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.
Fiberglas, Lathers, and Carpenters filed briefs which have been duly
considered.'
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-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
Upon the entire record in this case,=the Board makes the following
findings :
1. The parties stipulated, and we find, that the Employer is en-
gaged in commerce within the meaning of the Act.
2. The parties stipulated, and we find, that Lathers and Carpenters
fire labor organizations within the meaning of the Act.
3. The dispute:
A. The Work in Issue
Nailing channel is used in the construction of acoustical tile ceil-
ings. The work here in dispute is the installation of nailing channel
for the application of gypsum board backing for acoustical tile.
B. The Basic Facts
Fiberglas, a contractor licensed by the State of New Mexico,-is'en-
gaged, inter alia, in the installation of acoustical tile ceilings. This
case involves a Fiberglas subcontract under Hegeman-Harris Co.,
Inc., the, general contractor, to install the acoustical tile ceiling at
the Federal Office Building being constructed at Albuquerque,. New
Mexico.
i Fiberklas' request for ` oral argument is hereby denied, as the record , and briefs ade-
quately present the issues and the positions of the parties.
At the hearing Lathers filed a document which included a motion to quash , a motion
to dismiss , and an answer , all of which have been incorporated into ' the record.' For
reasons appearing hereinafter the motions are denied. _
WOOD, WIRE & METAL LATHERS, ETC., LOCAL 238 1121
In early May 1964 construction of the building had progressed to
the point where Fiberglas could begin installation of the acoustical
ceilings. Fiberglas, on an experimental basis, had Bill Carroll, an-
other subcontractor on this project, install the nailing channel on the
second floor of the building. Carroll could not meet the cost estimates
established by Fiberglas, and by mutual agreement, he discontinued
this operation and Fiberglas undertook the installation of the nailing
channel.
On Friday, May 8, George J. Gray, the Fiberglas job superintend-
ent, requested the business agent of Lathers to send two men to the
job on Monday, May 11, to install the nailing channel. On May 11
two lathers showed up to do the work but were unable'to do so because
the floor was cluttered.
On Wednesday, May 13, Gray was informed by Rodell Bloomfield,
business agent of Carpenters, that the agreement between Carpenters
and Lathers, which assigned the installation of nailing channel to
lathers, had been abrogated by Lathers and'was no longer in effect,
thereby permitting Fiberglas to assign anyone it wished to install nail-
ing channel. 'Fiberglas then decided to assign this work to'carpenters,
and so advised both Lathers and Carpenters. On Friday, May 15,
Lathers picketed the jobsite. The picket sign'read:
Fiberglass [sic] Engineering & Supply Co. refuses to hire Lathers
and has no Contract with Lather's Local No._238, A.F.L. & C.I.O.
Fiberglas filed a charge alleging' violation of Section 8(b) (4) (D)
of the Act. Lathers continued picketing the Federal Office Building
until May 20, 1964, when Fiberglas removed carpenters from the job.
On June 15, 1964, pursuant to.a petition filed by the National Labor
Relations Board, Judge, Howard C. Bratt'on of the L7nnited,States Dis-
trict Court in Albuquerque, New Mexico, signed a decree granting the
Board a temporary injunction enjoining Lathers from picketing or
taking like action pending.the Board's disposition of the instant
matter. , •
C. Contentions of th, Parties
Both Fiberglas and Carpenters contend that this action is a juris-
dictional'dispute and that L-athe'rs,'by its picketing of the Federal
Office Building site, violated Section 8(b) (4) (D) of the Act.' More-
over, they maintain that on the basis of greater economy and skill, in-
cluding an existing training program, area practice, and the close
working relationship' which has developed over, the years between
Fiberglas and Carpenters, the installation of nailing channel should
be awarded to Carpenters.
7607-577-65-vo1:148--72 • '
1122 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Lathers contends that this proceeding is not a jurisdictional dis-
pute, that the purpose of its picketing was not to force Fiberglas to
assign the installation of nailing channel to its members , but rather to
recover jobs which had formerly been held by two of its members.
However, should the Board find that a jurisdictional dispute does exist
herein, Lathers contends that on the basis of its agreement of June 10,
1963, with Carpenters , which it asserts is extant , the existing area
practice , and comparative efficiency of operation , it should be awarded
the work.
D. Applicability of the Statute
Charges herein alleged a violation of Section 8(b) (4) (D) of the
Act. The record shows, and Lathers does not deny, that on or about
May 15, 1964, after Fiberglas began using carpenters to install nail-
ing channel, Lathers commenced picketing the jobsite with a sign
stating that Fiberglas would not hire and did not have an agreement
with Lathers. Picketing ceased only when Fiberglas removed car-
penters from the job. In view of the emphasis of this sign on the
lack of a contract between Fiberglas and Lathers and the statement
that .Fiberglas refuses to hire Lathers, we find that there is reasonable
cause to believe that an object of the picketing was to force and re-
quire Fiberglas to employ members of Lathers rather than members
of Carpenters to install nailing channel, and that a violation of Sec-
tion 8(b) (4) (D) has occurred and that the dispute is properly before
the Board for determination under Section 10(k) of the Act.
MERITS OF THE DISPUTE
Section 10 (k) of the Act requires the Board to make an affirmative
award of disputed work after giving due consideration to various
relevant factors; and the Board has held that its determination in
a jurisdictional dispute case is an act of judgment based upon com-
mon sense and experience and a balancing of such factors.
1. Collective-bargaining agreements: Carpenters and Fiberglas
have a collective-bargaining agreement covering the employees to
whom Fiberglas assigned the work in dispute. Lathers has no con-
tract with - Fiberglas. On June 10, ,1963, the , Internationals of
Carpenters and Lathers signed an agreement which gave Lathers
jurisdiction over installation of nailing channel. The record indi-
cates that this agreement was abrogated by Lathers, allowing Fiber-
glas to assign carpenters to install nailing channel.
2. Company, area, and industry practice : Although the record con-
tains considerable evidence on area and industry practice, it is incon-:
clusive. Fiberglas had used carpenters to-install nailing channel and
WOOD , WIRE & METAL LATHERS, ETC ., LOCAL 238 1123
ceased only deference to the June 10 agreement ; therefore the assign-
ment of this work to Carpenters is in accord with Fiberglas' past
practice.
3. Efficiency of operation : It is not contended that either carpen-
ters or lathers entirely lack the skills or' ability to, install nailing
channel. However, Fiberglas asserts that the training which car-
penters receive during the apprenticeship period provides more
competent personnel . Moreover, Carpenters can provide a crew
specialized in ceiling installation which.makes it possible for one crew
to do the entire installation making for greater economy , because, inter
alia , any errors in the installation of the ceiling which have to be
corrected by altering the nailing,channel-can be.rectified by the crew
then on the job. 'Lathers 'does not have , an apprentice program com-
parable to that of Carpenters nor the specialized personnel whom
Carpenters can provide.
CONCLUSION AS TO THE MERITS OF THE DISPUTE
Upon consideration of all pertinent factors we shall assign the work
in dispute to carpenters . They are more skilled 'in the performance
of the work than lathers who compete for it and have performed it
to the satisfaction of Fiberglas , which desires to retain them on the
job. The present assignment of, the disputed work to carpenters is
consistent with Fiberglas' current collective-bargaining agreement
with Carpenters, it conforms to Fiberglas ',,past practice, and the ef-
ficiency with which carpenters may, accomplish this job establishes a
superior claim to the disputed work. , We therefore conclude that
Fiberglas ' assignment of the work to, carpenters should not be dis-
turbed. We shall, accordingly , determine the jurisdictional dispute
by deciding that carpenters , rather than lathers, are entitled to the
work in dispute . In making this determination , we are assigning the
disputed work to the employees 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
Upon the basis of the foregoing findings and the entire record in
this proceeding , the Board makes the following determination of
dispute pursuant to Section 10 (k) of the Act':
1. Employees employed as carpenters . by the Fiberglas Engineer-
ing & Supply Division , Owens-Corning Fiberglas Corporation at
Albuquerque , New Mexico , currently represented , by the United
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Carpenters and Joiners of America, Local No. 1319,
AFL-CIO, are entitled to perform the work of installing nailing
channel at the Federal Office Building, Albuquerque, New Mexico.
2. Wood, Wire, and Metal Lathers International Union, Local No.
238, AFL-CIO, is not and has not been entitled, by means proscribed
by Section 8 (b) (4) (D) of the Act, to force or require the Employer
to assign the above work to lathers.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Wood, Wire, and Metal Lathers International Union,
Local No. 238, AFL-CIO, shall notify the Regional Director for
Region 28, in writing, whether it will or will not refrain from forc-
ing or requiring the Employer, by means proscribed by Section
8(b) (4) (D), to assign the work in dispute to lathers rather than
carpenters.
Chrysler Corporation and International Union , United Automo-
bile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO) and its Local No. 412 ,1 Petitioner . Case No.
7-RC-582. September 16, 1964
SECOND SUPPLEMENTAL DECISION AND ORDER
On February 24, 1964, the Petitioner filed a motion to clarify certifi-
cation in the above case. An opposition to the motion was filed by the
Employer. Upon considering the matter, the Board on March 25,
1.964, referred the proceeding to the Regional Director for Region 7
for the purpose of holding a hearing on the issues raised by the parties.
A hearing was thereafter held on May 20 and 21, 1964, before Hear-
ing Officer James R. McCormick. His rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
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-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
The motion for clarification, as supplemented by stipulations and
testimony received at the hearing, indicates that the issue here is
whether Russell Redd, an employee in the Employer's Brake Labora-
tory, and any future replacement or similar employees, should be in-
cluded in the unit as a mechanic and/or driver, or should be regarded
as an engineering contact man and excluded from the unit.
i The Local Union was added as a party at the hearing . The original certification,
issued January 26, 1950, pursuant to a decision and direction of election reported in,
87 NLRB 304 , ran only to the International Union.
148 NLRB No. 118.