Masonry Magazine January 1969 Page. 44
NLRB Decisions
S & W contends that Respondent did violate the Act, that S&W is not bound by any contractual obligation or by any agreement to submit the dispute to the Joint Board, that the skills possessed by employees represented by Laborers are, if anything, greater than those of individuals represented by Respondent, and that utilization of employees represented by Laborers effects a more efficient operation since such employees in addition to performing the disputed work also assist the brick masons and keep them supplied with mortar and bricks. Finally, S & W contends that both area and industry practice support an award consistent with the Employer's actual assignment to employees represented by Laborers.
Laborers did not file a brief to the Board, but it appears from the record that it supports the contention of S & W.
E. APPLICABILITY OF THE STATUTE
Before the Board may proceed with a determination of the 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 testimony of Killingsworth and Edwards supporting such a finding was refuted by Pennington and Parker. Nevertheless, the Board is not charged with finding that a violation did in fact occur, but only that reasonable cause exists to find such a violation. Without ruling on the credibility of the testimony in issue, we find such reasonable cause exists, and that the dispute is properly before the Board for determination under Section 10(k) of the Act.
F. MERITS OF THE DISPUTE
The determination of who is entitled to the disputed work in a case such as this must rest on an assessment of all the relevant factors. There exist, however, certain broad criteria upon which the Board has traditionally relied.
General Contractor Richardson is a member of the Associated General Contractors of America, Inc. (hereinafter called AGC) and is a party to contracts with various building and construction trade unions negotiated by AGC. These contracts, including contracts with both the Respondent and Laborers, bind the parties to submit jurisdictional disputes to the Joint Board. However, the record reveals that the AGC negotiators specifically rejected union demands that those contracts bind not only the general contractor but also any subcontractors to the resolutions of the Joint Board. Moreover, S & W is not a member of AGC, has no contractual relationship with the Respondent, and employs members of Laborers without a collective-bargaining contract. There is no question on the record before us that S & W and Laborers elected to operate without a standard labor agreement for one reason only to reject being bound by the resolutions of the Joint Board while accepting all other terms and conditions of a standard Laborers contract in the area. In these circumstances we can find no basis for concluding that all parties have agreed to be bound by a determination of the Joint Board. There is no contention that any relevant Board certification, any arbitrators' awards, or any other agreed-upon method of resolving the dispute exists.
Respondent contends that carpenters' skills are involved in that the metal scaffolding sectional joints sometimes have to be hammered into place and care must be exercised in making sure that the scaffolding is well footed and level. However, the record reveals that the joints may be hammered into place with a hammer, a piece of wood, or a piece of brick. Moreover, proper footings are provided by utilizing existing sidewalk, scraping ground level, and placing any firm surface under the scaffolding. While leveling may possibly require use of a transit, usually a spirit level is the only tool utilized. It is clear that the skills involved are rudimentary in nature and do not necessitate those of the Carpenters' craft. It should also be noted in this respect that a special member subcategory of the Laborers Union, known as mason tenders, exists who specialize in scaffold work. Mason tenders have been utilized at the instant project.
Locals 158, 158A, 1588, 158C, and 158i, International Union of Operating Engineers, AFL-CIO (Caffasso Lathing and Plastering Inc.) 149 NLRB 156, 156-159.
See International Association of Machinists (J. A. Jones Construction Co.), 135 NLRB 1402, 1410.
The Carpenters submitted this dispute to the Joint Board which rendered its decision by letter on June 20, 1968, awarding the work to Carpenters in accordance with its earlier decision in 1920. The instant Joint Board decision offers no rationale other than reliance on the 1920 award which was made at a time when scaffolding was constructed of wood and traditional carpenters' skills were involved. In any event, we have concluded that S & W is not bound by decisions of the Joint Board.
S&W contends without contradiction that the laborers assigned to the scaffolding work also assist the brick masons and keep them supplied, and that carpenters would not perform those functions but rather would be idle when no scaffolding work was necessary. It appears that the efficiency factor would favor an award to employees represented by Laborers consistent with the Employer's assignment.
Officials of both Richardson and S& W, Laborers' Business Manager Reynolds, and James Stewart, a noninvolved masonry subcontractor in the area, all testified as to the area and industry practice both in general terms and as to a substantial number of specific projects. Their testimony is consistent that scaffolding work, above or below 14 feet, is erected by laborers. Respondent's witnesses Parker and Pennington testified that where a dispute arose involving scaffolding over 14 feet high, the practice in the area and in the industry was consistently to assign such work to carpenters. Due apparently to the inability of Carpenters to police all jobs involving high scaffolding, both Parker and Pennington admitted some such work was done by laborers. Parker estimated that figure at about 50 percent and Pennington at about 10 percent.
The Employer has assigned the work, as mentioned above, to employees represented by Laborers.
In view of the above, and most particularly, the clearly enhanced efficiency effectuated by utilizing employees represented by Laborers, the absence of required skills and training, and the Employer's assignment, we shall determine this dispute in favor of S & W employees represented by Laborers. However, our present determination is limited to the controversy which gave rise to this proceeding. In making this determination, we are awarding the controverted work to S&W employees represented by Laborers and not to Laborers or its members.
Accordingly, we find that the Respondent was not, and is not, entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require S & W to assign the disputed work to carpenters rather than to S & W employees represented by Laborers.
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.
A. Employees of S & W Masonry, Inc., currently represented by Laborers International Union of North America, Local 559, are entitled to perform the following work:
All erection and disassembling of scaffolding over 14 feet high at the Affiliated Facility for the Mentally Retarded, University of Alabama Medical Center, Birmingham, Alabama.
B. Jefferson County, Alabama and Vicinity Carpenters District Council is not entitled by means proscribed by Section 8(b)(4)(i) or (ii) (D) of the Act to force or require S & W Masonry, Inc., to assign the above described work to individuals who are represented by it.
C. Within 10 days from the date of this Decision and Determination of Dispute, Jefferson County, Alabama and Vicinity Carpenters District Council shall notify the Regional Director for Region 10, in writing, whether or not it will refrain from forcing or requiring S & W Masonry, Inc., to assign the work in dispute to carpenters, rather than to employees of the above-named Employer represented by Laborers International Union of North America, Local #559.
Dated, Washington, D.C., Dec. 11, 1968.
(Seal)
Frank W. McCulloch, Chairman
John H. Fanning. Member
Gerald A. Brown. Member
NATIONAL LABOR RELATIONS BOARD
masonry
January, 1969