Wood Wire & Metal Lathers' International Union

National Labor Relations Board - Board Decisions

Feb 19, 1958

119 N.L.R.B. 1658 (N.L.R.B. 1958)

1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that , in view of the Board's administrative
advices, the aforesaid Decision and Direction of Elections be, and it
hereby is, amended by striking therefrom paragraph 4 and footnote 3
in their entirety and substituting therefor the following paragraph :
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: 3
All production and maintenance employees at the Employer's
East Jordan, Michigan, foundry and machine shop plant, includ-
ing the truckdrivers, the truck mechanics, and part-time employ-
ees,4 but excluding office clerical employees, plant clerical em-
ployees, professional employees, watchmen, guards, foremen,
and all other supervisors as defined in the Act.
3 The Board having been administratively advised that the Intervenor , after timely
notification from the Regional Director , has permitted its compliance with Sec-
tion 9 ( g) of the Act to lapse and has failed to renew its compliance under Sec-
tion 9 ( f) of the Act, we hereby deny the Intervenor 's request for a separate unit of
truckdrivers and find, under the circumstances and in accordance with the alterna-
tive request of the Petitioner and the agreement of the Employer, that a unit of
production and maintenance employees including the truckdrivers constitutes the
appropriate unit.
IT IS FURTHER ORDERED that the aforesaid Direction of Elections be,
and it hereby is, amended as follows :
1. By striking therefrom the words "in the units found ap-
propriate in paragraph numbered 4, above," and substituting
therefor the words "in the unit found appropriate in paragraph
numbered 4, above."
2. By striking therefrom the words "to determine whether or
not they desire to be represented for purposes of collective-bar-
gaining in Unit A by International Union, Allied Industrial
Workers of America, AFL-CIO ; and in Unit B by Local 527,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America," and substituting therefor
the words "to determine whether or not they desire to be repre-
sented for purposes of collective bargaining by International
Union, Allied Industrial Workers of America, AFL-CIO."
Wood Wire & Metal Lathers' International Union ,, Local 46,
AFL-CIO and Jacobson & Co., Inc. Case No. 2-CD-126. Feb-
ruary 19, 1958
DECISION AND ORDER QUASHING NOTICE OF HEARING
This proceeding arises under Section 10 (k) of the Act, which
provides that "Whenever it is charged that any person has engaged
119 NLRB No. 210.
WOOD WIRE & METAL LATHERS' INTERNATIONAL UNION 1659
in an unfair labor practice within the meaning of paragraph (4) (D)
of Section 8 (b), the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen. . .."
On June 21, 1956, Jacobson & Co., Inc., herein called the Company,
filed with the Regional Director of the Second Region a charge
against Wood Wire & Metal Lathers' International Union, Local 46,
AFL-CIO, herein called Local 46, alleging that Local 46 had engaged
in and was engaging in unfair labor practices within the meaning of
Section 8 (b) (4) (D) of the Act. The charge alleged, in substance,
that Local 46 had engaged in, and had induced and encouraged em-
ployees of the Company to engage in, a concerted refusal to work in
the course of their employment with an object of forcing or requiring
the Company to assign particular work to employees who are mem-
bers of Local 46, rather than to employees who are members of
Local Union 1772, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called Local 1772.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 1.02.72 of the Board's Rules and Regulations , Series 6, as
amended, the Regional Director investigated the charge and provided
for a hearing upon due notice to all the parties. The hearing was held
on September 24 and 25, 1956, in New York, New York, before Sidney
Danielson, hearing officer. The Company and Local 46 appeared at
the hearing r and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce evidence bearing
on the issues. The rulings of the Trial Examiner made at the hearing
are free from prejudicial error and are hereby affirmed.
After the hearing was concluded,2 the Company and Local 46
filed briefs with the Board. These briefs have been considered by
the Board. The Board has also considered in conjunction with this
case an amicus curiae brief filed by the National Joint Board for
Settlement of Jurisdictional Disputes in the Cleveland Acoustical)
case.
Upon the entire record in this case, the Board finds :
1. The Company is engaged in commerce within the meaning of
the Act.
2. Loca146 and Local 1772 are labor organizations within the mean-
ing of the Act.
I Local 1772, although served with notice of hearing , did not enter an appearance or
participate in the hearing.
2 On June 12 , 1957, the Board denied the General Counsel 's motion to remand the pro-
ceeding and reopen the hearing.
8 Acoustical Contractors Association of Cleveland, 119 NLRB 1345. On June 13, 1957,
the Board ordered the National Joint Board to serve copies of its amicus brief in
the latter case upon the parties to this proceeding , and provided the parties an oppor-
tunity to file a brief in reply thereto.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The dispute :
The Facts
In October 1955, the Company was awarded a contract for the
installation of acoustical ceilings at the Fern Place School, in Nassau
County, Long Island, New York. Aware that this work was the sub-
ject of an unsettled dispute between the Lathers' International and
the Carpenters International, the Company sought to avoid possible
delays in construction by requesting, on April 9, 1956, a decision
respecting work assignment from the National Joint Board for the
Settlement of Jurisdictional Disputes. Subsequently, in reply to a
request from the Joint Board for specific information about the work
assignment the Company on April 19, 1957, communicated to the
Joint Board its intention of assigning lathers the work of installing
furring channels, and assigning carpenters the work of attaching H
bars to those channels; but, in the areas where H bars were to be
attached to the underside of the bar joists without any furring chan-
nels, of assigning to lathers the work of erecting the H bars. The
Company also disclosed its intention of assigning carpenters the work
of installing the acoustical tiles and related operations. On April 20,
the Joint Board requested Lathers' International and Carpenters
International to submit to the Joint Board their positions with regard
to the work in dispute. Lathers' International did not comply with
this request. On May 8, 1956, the Joint Board wired the Company
that at a meeting on May 4, 1956: "Joint Board voted that there is no
basis for Jacobson to alter contractor's assignment as reported."
Upon receipt of the Joint Board's decision; the Company asked
Local 46 if it would abide by the Joint Board's decision. Local 46
refused on the ground that Lathers' International was no longer par-
ticipating in Joint Board procedures, and therefore the local was not
bound by the latter's awards. In this connection, the record herein
shows that on February 21, 1955, William J. McSorley, then general
president of Lathers' International, issued formal notice to the Joint
Board and to a number of contractor associations that Lathers' Inter-
national and its affiliates "will no longer be a participant in [the Plan
for Settling Jurisdictional Disputes] or be bound by any of the Joint
Board decisions after March 31, 1955."
The Company began work on the Fern Place School around the
middle of May 1956. Sometime after the job began it learned that
Local 1772 was demanding that the installation of H bars be per-
formed by carpenters, and was threatening a strike in the event that
lathers were assigned this work.
Toward the end of May 1956, the Company's construction superin-
tendent, James Peggie, visited the project and directed Nadler, the
lather foreman and a member of Local 46, to proceed with the installa-
tion of furring channels. Nadler refused to do the work unless he
WOOD WIRE & METAL LATHERS' INTERNATIONAL UNION 1661
was assured that the work of installing the H bars would be done by
lathers. A telephone call was then made to Walter Matthews, a busi-
ness manager of Local 46, during which Superintendent Peggie sought
Local 46's consent to the installation of the channels without the H
bars. The business manager, however, refused the request. Foreman
Nadler then discussed the matter with. Frank C. Baumann, Local 46's
shop steward on the job, after which both refused to put up the
channels unless lathers installed the H bars.'
On -June 21, 1956, the Company filed the instant Section 8 (b) (4)
(D) charge. Thereafter, the General Counsel instituted an injunction
proceeding under Section 10 (1), which was set down for hearing on
August 16 in United States District Court for the Eastern District
of New York. On August 15, Local 46 notified the General Counsel
that it would accede to the Company's assignment of the disputed
work to carpenters, pending final adjudication of the disputed matter
by this Board. As a result, on August 16, when the case was called
in the District Court, the General Counsel requested that the injunction
proceeding be withdrawn from the calendar, subject to restoration
if Local 46 resumed its opposition to the Company's assignment of
work. The court granted this request.
On the same day, August 16, 1956, the Company and Local 46
entered into an agreement, to be "in full force and effect as of July
1, 1955, article VI (a) of which provided as follows:
The employer agrees that all of the work set forth in Section 3
of the L. I. U. Constitution will be contracted for, assigned to
and performed by journeymen lathers and apprentices, and that
shall be the term and condition of employment under the pro-
visions of this agreement.
The constitutional provision referred to in this agreement-i. e., Sec-
tion 3 of the constitution of Lathers' International in effect December
1, 1955-sets forth, inter alia the installation of H bars as within the
International's jurisdiction.
Prior to August 16, the Company had no written contract with
Local 46. It did have, however, a bargaining contract with Local
1772, which made no mention of the subject of work assignments,
either to carpenters or other employees.
The Fern Place School project was completed on or about Sep-
tember 10; 1956, with carpenters performing the H bar installation.
'A short time later, Superintendent Peggie spoke to John Tierney, another business
manager of Local 46, about getting the work completed. Tierney refused to change
Local 46's position. Several weeks later, Superintendent Peggie again directed Nadler
and Baumann to proceed with the installation of the channels to which the H bars were
to be attached. Again both refused. Another call was placed to Local 46's office, this
time to business manager "Tim" Spillane. When told of the purpose of the call, Spillane
told Nadler and Baumann : "We put up the inch-and-a-half and the H bar, or we don't
put it up."
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
Applicability of • the Statute
Section 10 (k) of the Act, which empowers and directs the Board
to hear and-determine disputes out of which Section 8 (b) (4) (D)
charges have arisen, also contains mandatory limitations upon the
Board's authority to make a determination of dispute in certain
.circumstances, Thus Section 10. (k) provides in pertinent part
... The Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have
arisen, unless ... the parties•to such dispute submit to the Board
satisfactory evidence that they have adjusted or agreed upon
methods for the voluntary adjustment of the dispute... .
In, view of the statutory limitation of the Board's authority, it is
necessary to determine whether the parties, by reason of their rela-
tionship with the National Joint Board for the Settlement of Juris-
dictional. Disputes, have agreed upon a method for the voluntary
adjustment of the dispute here considered.' Insofar as the Company
is concerned, it appears that it submitted the dispute to the Joint
Board in the first instance, thereafter replied to a request from the
Joint Board for specific information about the work assignment, and
-ultimately assigned the work in question in the manner decided by
the joint Board. In these circumstances, we find, in accordance with
precedent, that the Company has agreed upon a voluntary method
for the adjustment of the dispute herein, namely, Joint Board pro-
cedures.6
It further appears that Carpenters International was bound, by
its membership in the Building and -Construction Trades ' Depart-
ment, AFL-CIO, which is a signatory to the Plan for Settling
Jurisdictional . Disputes-the. agreement establishing . the Joint
Board-to accept and comply with decisions - of the. Joint Board.?
It follows, and we :so find, that, Local 1772. was similarly bound.'..
As for Local 46, in the recently decided Cleveland Acoustical case,'
the Board considered and passed upon the efforts, of Lathers' Inter-
national to dissociate itself from the Plan for. Settling Jurisdictional
Disputes.. The record in' that case contained not only the facts set
forth above pertaining to such efforts, but others showing that Lath-
5 See Manhattan Construction Company, Inc., 96 NLRB 1045.
No party to the dispute herein has' affirmatively asserted that an "agreed upon method"
exists, although Local 46, in its brief, argues that such a "method" does not exist.
a A. TV. Lee, Inc., 113. NLRB 947, 953.
v The record in this proceeding does not contain specific evidence pertaining to Carpenters
International's adherence to the,Plan establishing the Joint Board. However, we take
administrative cognizance of the Plan . See Acoustical Contractors Association of Cleve-
land, 119 NLRB 1345 , wherein . the . Board found that Carpenters International was
bound to accept and comply with. Joint Board decisions.
a See A. W. Lee, Inc., supra, at 952. .
9 Acoustical Contractors Association of Cleveland, 119 NLRB 1345.
J. TOM MOORE & SONS, INC. 1663
ers' International took additional steps in this direction as well. The
Board there held, however, that Lathers' International, by retaining
its membership in Building Trades Department, AF.L-CIO, "con-
tinued to subject itself and its locals to all constitutional requirements
of Department membership, including the requirement that it recog-
nize and be bound by the Joint Board agreement which the Depart-
ment executed on behalf of its affiliates." Applied in this case, the
holding in the Cleveland Acoustical case is dispositive of the status
of Local 46 so far as Joint Board procedures are concerned.
In view of the foregoing, we conclude and find that when the charge
herein was filed the parties had agreed upon a method for the volun-
tary adjustment of the dispute in question. Accordingly, we find
that the Board is without authority to determine the dispute, and we
shall quash the notice of hearing.
[The Board quashed the notice of hearing.lo]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Decision and Order Quashing Notice of Hearing.
10 In conformity with the Board's decision in Acoustical Contractors Association of
Cleveland, supra, the charge herein will not be dismissed but will remain on file in the
Regional Office pending final adjustment of the dispute.
J. Tom Moore & Sons, Inc. and Talbot Lodge No. 61, Interna-
tional Association of Machinists , AFL-CIO, Petitioner. Case
No. 32-RC-958. February 19, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was: held before Caso March, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial, error and are hereby affirmed.
On December 9, 1957, the Board by notice.to show cause directed
the Employer to show• cause in writing why the Board should not
assert ..jurisdiction over the operations of the Employer • based on
information, as to the Employer's commerce as set forth in ^ the
appendix attached to said notice. Thereafter, the Employer duly
filed an answer to.the said notice to show cause in which it objected
to the assertion of jurisdiction on the grounds hereinafter discussed.
Upon the entire record in this case the Board funds :
1: The Employer is a Tennessee corporation engaged at Memphis,
Tennessee, in the manufacture, sale, and repair of armored trucks
and other types of truck bodies. It was stipulated at the hearing that,
during the 12. months next preceding the date of the hearing, the
119 NLRB No. 209.