Essex County Building

ESSEX COUNTY BUILDING & CONSTRUCTION TRADES COUNCIl. Essex County Building and Construction Trades Council, and its Constituent Members; Local 502, International Laborers' Union of North America, AFL-CIO; and Essex County and Vicinity Carpen- ters and Millwrights, Local Union 1342, AFL-CIO and Local 1027, The Federation of Employees Union and Index Construction Corporation. Cases 22-CD-327, 22-CD 328, and 22-CD 329 July 2, 1979 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Local 1027, the Federation of Em- ployees Union (hereinafter Local 1027), alleging that Essex County Building and Construction Trades Council and its Constituent Members (hereinafter Trades Council); Local 502, International Laborers Union of North America, AFL-CIO (hereinafter La- borers Local 502); and Essex County and Vicinity Carpenters and Millwrights, Local Union 1342, AFL-CIO (hereinafter Carpenters Local 1342), had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Index Construction Corporation (herein- after the Employer), to assign certain work to em- ployees represented by them rather than to employees represented by Local 1027. Pursuant to notice, a hearing was held before Hear- ing Officer Louis P. Verrone on January 30 and 31, 1979, and on February , 1979. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues.' Thereafter, Respon- dent Carpenters Local 1342 filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- Prior to the close of the heanng, each of the Respondent Unions refused to participate any further because each Union objected to the manner in which the Hearing Officer was conducting the hearing. However. the record clearly reveals that each Respondent was fully aware that it could file a special appeal with the Regional Director for Region 22 with regard to any ruling of the Hearing Officer. In addition. the record reveals that the Hearing Officer granted each Respondent an automatic exception to all of his rulings and permitted each Respondent the full opportunity to explain the purpose for its exceptions on the record. The record also reveals that the Hearing Officer permitted each Respondent to cross-examine witnesses on all relevant issues to the 10(k) proceeding. ings made at the hearing and finds that they are free from prejudicial error.2 They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPI O()YER The Employer, a corporation with its principal place of business in New York, New York, is engaged as a general contractor in the building and construc- tion industry. During the past year, the Employer purchased in New York and had delivered to a jobsite in the State of New Jersey goods and materials val- ued in excess of $50,000. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert juris- diction herein. II. HE LABOR OR(;ANIZAIONS Nvl()IVll) The parties stipulated that Laborers Local 502 and Carpenters Local 1342 are labor organizations within the meaning of Section 2(5) of the Act. With regard to the status of Respondent Trades 2 At the hearing, each Respondent excepted to the lHearing Officer's rul- ings, which permitted only limited cross-examination regarding the status of Local 1027 as a labor organization and the validity of the collectise-hargain- ing agreement between Local 1027 and the Employer. Those exceptions were renewed by Carpenters Local 1342 in its bnef to the Board, in which it also requested that the matter be remanded to the Hearing Officer for the taking of additional evidence and to allow adequate and proper cross-examination. We find no merit in those exceptions. The Board has held repeatedly that a hearing under Sec. 10(k) of the Act "s an nvesligaor. rather than an adver- sar,. proceeding. the sole purpose of which is to adduce all reliarun evidence in order to determine whether or not reasonable cause exists to believe that the Act has been volated (Emphasis supplied.) Bricklavers l,cal Union No. I ofj Missouri. Bricklavers. Masons and Plasterers Iniernational U'non. AFL CIO (St Louis Home Insulators, Inc.), 209 NLRB 1072. 1075 (1974). The status of Local 1027 as a labor organization is not a prerequisite to a finding that a junsdictional dispute exists, as it has been repeatedly held that Secs. 8(bX4XD) and 10(k) apply to disputes "between rival groups of em- ployees." and not only between rival unions See Highav Truckdrivers & Helpers, Local 107, Internaional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers /f America, Independent (Safeay Stores, Incor- porated), 134 NLRB 1320, 1322 (1961). In addition, the existence and valid- ity of the collective-bargaining agreement between Local 1027 and the Em- ployer is only one factor to be considered by the Board in determining a jurisdictional dispute, and its legality or illegality "may not be pleaded as a defense to conduct otherwise in violation of Section 8(bhX4XD)." Interna- tional Longshoremens and Warehousemen's Union, Local 13, et al. (California Cartage Company, Inc.), 208 NLRB 986. 990 (1974). In light of the limited relevance of the status of Local 1027 as a labor organization and the exis- tence and validity of the collective-bargaining agreement between Local 1027 and the Employer, the Hearing Officer's ruling in which he limited the extent to which Respondents could cross-examine witnesses regarding those two factors was entirely proper. Accordingly, we also deny the request of Carpenters Local 1342 to remand the instant dispute to the Hearing Officer for the taking of additional eidence. In addition, subsequent to the close of the 0I(k) hearing. Respondent Trades Council filed a motion for remand to the Regional Director for the taking of additional evidence. In its motion. Respondent Trades Council seeks further hearing on the validity of the collective-bargaining agreement between Local 1027 and the Employer and on changed circumstances since the close of the hearing. Since we have not relied on the collective-bargaining agreement in awarding the work In dispute. and since we see no need for further hearings on alleged changed circumstances, the motion is hereby denied 243 NLRB No. 25 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council, the record reveals that it is composed of rep- resentatives from 17 different organizations, all of which are labor organizations within the meaning of Section 2(5) of the Act, including Laborers Local 502 and Carpenters Local 1342. The Council provides as- sistance to its member unions with regard to em- ployer delinquency in pension fund contributions, safety problems on the job, negotiation of collective- bargaining agreements, and support of labor legisla- tion. The Council maintains a constitution and by- laws, and its officers are elected by delegates from ¢each member union. The record further reveals that Raymond Greeley, president of the Trades Council, and Martin Shmurak, secretary-treasurer, dealt with the Employer with regard to the work in dispute as a representative of all of the trade unions involved in the proceeding. Since the Trades Council is an or- ganization in which employees participate and which exists at least, in part, for the purpose of "dealing w ith employers concerning ... labor disputes, wages, rates of pay, hours of employment, or conditions for work," it is clearly a labor organization within the meaning of Section 2(5) of the Act. Local 1027 is an organization composed of em- ployee-members who attend its meetings and elect its officers pursuant to a constitution and bylaws. It has been certified by the Board as the collective-bargain- ing agent in two different units of employees, existing for the purpose of entering into collective-bargaining agreements covering the wages and working condi- tions of the employees it represents. Accordingly, we find that Local 1027 is a labor organization within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute On October 25, 1978, the Employer entered into a collective-bargaining agreement with Local 1027 for the purpose of employing Local 1027 members at the various jobsite locations of the Employer. This collec- tive-bargaining agreement does not cover the work in dispute herein. Toward the end of 1978, the United States Department of Housing and Urban Develop- ment (HUD) awarded the Employer a contract to renovate a certain building called Corinthian Towers located at 67 South Munn Avenue, East Orange, New Jersey. The purpose of the project was to rehabilitate and convert the 50-year-old structure containing 143 apartment units into a modern structure with an ad- ditional 221 apartment units. To begin work on the project, the Employer required the services of labor- ers to perform general demolition work and related cleanup duties, and carpenters to perform general carpentry work such as the installation of doors, floors, drywalls, windows, and insulation. Utilizing the services of laborers represented by Local 1027. the Employer scheduled work on the project to begin on December 27, 1978. On December 26, 1978, the Employer's president. Gary Shaw, received a telephone call from a man who identified himself as Raymond Greeley, pres- ident of the Trades Council. Greeley asked Shaw whose "men" were going to be used on the Corin- thian Towers job. Shaw informed him that he was going to use members of Local 1027. Greeley replied that Shaw could not do that because "we have juris- diction and we are going to put our men on that job." When Shaw told Greeley that he had a contract with Local 1027, Greeley said he did not care about the contract, and "that [you are] going to get trouble you are asking for trouble." Greeley then demanded that a meeting be set up for the next day at the Corin- thian Towers jobsite between Shaw and a committee of the Trades Council. On the morning of December 27. which was the first day that construction work was performed by members of Local 1027 at the Corinthian Towersjob- site, Shaw and John Soures, president of Local 1027, were confronted in the lobby of the building by a committee of the Trades Council, led by Greeley. Shaw and Greeley then engaged in a private conver- sation away from the other people in the lobby. Gree- ley, stating that he represented the Trades Council. asked Shaw who the employees were who were work- ing on the site, and Shaw informed him that they were members of Local 1027. Greeley stated that "this is our job: we have jurisdiction on this job." When Shaw pointed out that he had a contract with Local 1027. Greeley replied that "you don't have to worry about that; we can help you get rid of it." Shaw indicated that he was happy with his contract with Local 1027. When Greeley asked how he could get his men on the job, Shaw told him that much of the work on the job was still uncommitted, and that perhaps some work might be awarded to subcontrac- tors signatory to a collective-bargaining agreement with one of the Trades Council's affiliated local unions. Following a general discussion of the other types of work to be performed in the future on the jobsite, Greeley asked Shaw if he was in compliance with prevailing area wages, and Shaw replied that he was. Greeley again demanded that "he wanted his men on the job and if [the Employer] didn't [the Em- ployer] was going to have trouble." When Shaw asked him if that meant labor trouble and picketing, Greeley said, "We will see." The meeting then ended. At no point did Greeley request any documentation from Shaw regarding Shaw's payment of prevailing area wages. 250 ItSSEX COUNTY BUII.DING & ('ONSTRUCTION TRADES ('OUN(II. On his arrival at the Corinthian Towers jobsite on the morning of December 28, 1978, Shaw observed approximately 10- 15 people in front of the worksite. 4 of whom were carrying picket signs. wo of the signs stated approximately the following: INFORMATIONAL PI('KETIN(; TIlIS ('ONTRACTOR DOES NO()' AVE A SI(iNEI) A(;GREMENTI' WF'II I.O('AI. 502, AF-I. (I() The other two signs read approximately as follows: INFORMATIONAI. PICKEIING THIS CONTRACTOR DOES NOT IHAVE WORKERS ROM I.O(AI. 1342, AFI.-CIO. Among those participating in the picketing were Ray Greeley, as well as other members of the Trades Council Committee who had met with Shaw on De- cember 27 in the lobby of the Corinthian Towers. The picketing continued until approximately 2:30 in the afternoon, at which time all of the picketers voluntar- ily left. On December 29, 1978, the picketers returned to the jobsite. The picketing continued on every work- day until January 24, 1979, when a United States dis- trict court judge accepted a consent order in which it was agreed that picketing at the Corinthian Towers jobsite would cease during the pendency of the 10(k) proceedings before the Board, but that thereafter Re- spondents could resume picketing within 3 days after filing notice of such intent with the Regional Director for Region 22. Counsel for the Assistant Regional Di- rector for Region 22 was not a party to that consent. B. The Work in Dispute The work in dispute consists of the demolition, car- pentry, and cleanup work at the renovation of an ex- isting structure called Corinthian Towers, 67 South Munn Avenue, East Orange, New Jersey. C. The Contentions of the Parties The Employer and Local 1027 contend that there is a jurisdictional work dispute; that each of Respon- dents has violated Section 8(b)(4)(D) of the Act by picketing the Corinthian Towers jobsite to pressure the Employer to assign the work to employees repre- sented by Respondents; and that the work in dispute should be assigned to employees represented by Local 1027. Respondents take the position that there is no showing of a jurisdictional work dispute cognizable under Section 10(k) of the Act, because: (1) Local 1027 is not a bona fide labor organization within the meaning of Section 2(5) of the Act, and thus the is- sues raised in the notice of hearing are not properly before the Board: (2) the collective-bargaining agree- ment between Local 1027 and the Employer on which the Employer relied to award the work in dispute to employees represented by Local 1027 is a sham trans- action and certain of its provisions are not being en- forced, and (3) the picketing engaged in by Respon- dents was solely for the purpose of protesting the Employer's failure to pay area standard wages to its employees. D. Applicailitv oftihe Statute' Before the Board may proceed with a determina- tion 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 and that the parties have no agreed-upon method for the voluntary adjustment of the dispute. There is undisputed testimony in the record that Ray Greeley, president of the Trades Council, and as such, a representative of Laborers Local 502 and Car- penters Local 1342, demanded on December 26 and 27, 1978, that Gary Shaw, the Employer's president. utilize employees represented by unions who are members of the Trades Council, rather than employ- ees represented by Local 1027, on the Corinthian Towers jobsite. When Shaw refused to comply with Greeley's demands, Respondents engaged in picket- ing of the Corinthian Towers jobsite with signs indi- cating that the Employer did not have an agreement with Laborers Local 502 and did not use workers from Carpenters Local 1342. Respondents did not dispute any of the evidence above. Rather, they attempted to show that Local 1027 is not a labor organization within the meaning of Section 2(5) of the Act, and that the collective- bargaining agreement between Local 1027 and the Employer was a sham transaction. As noted above in footnote 2, such factors are of no relevance to the Board in determining whether there is reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated. In addition, even if the evidence introduced by Respondents to dispute the status of Local 1027 as a labor organization and to dispute the validity of the collective-bargaining agreement was for the general purpose of attacking the credibility of the witnesses called by Local 1027 and the Employer, such evi- dence is irrelevant because the Board has repeatedly held that in 10(k) proceedings it is unnecessary to rule on the credibility of the testimony at issue in order to proceed to a determination of the dispute.3 I Local Union No 334. Laborers International Union ol' North America, AFL CIO (C H Heist Corporation)l 175 NLRB 608 (1969) See also Local 472. International Laborers Union, et al. (Ernest Renda Contracting Conmpanv. Inc.), 123 NLRB 1776 (1959). 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only relevant factors relied on by Respondents to support their contention that there is no jurisdic- tional dispute in the instant case is their claim that their picketing was solely to inform the public that the Employer was not paying wages to its employees which were in conformity with local area standards. Yet the record clearly reveals that Greeley asked Shaw on only one occasion whether Shaw was in compliance with prevailing area wages, and Shaw in- formed Greeley that he was in compliance. At no time did Greeley or any representative of Laborers Local 502 or Carpenters Local 1342 request any documentation from Shaw regarding wage rates or benefits. Thus, Respondents clearly did not make a good-faith attempt to ascertain whether the Employer was paying its employees in conformity with area standard wages, as required by Board law.4 In addi- tion, there is evidence in the record indicating that the Employer has, in fact, been paying its employees area standard wages and benefits, as required by its con- tract with HUD. Moreover, the language on Respon- dent's picket signs indicating that the Employer did not have a contract with Laborers Local 502 and did not use workers from Carpenters Local 1342 totally negate its contention that the purpose of its picketing was to inform the public of the Employer's failure to pay area standard wages.' Accordingly, we find that "an object" of the picketing engaged in by the Re- spondents was to force or require the employer to assign the work in dispute to employees represented by the Respondents. 6 On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(bX4XD) has occurred. In addition, all par- ties to this proceeding stipulated that there is no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. E. Merils of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various factors.7 The Board has See International Union of Operating Engineers Local 571. AFL CIO (J. E. D. Construction Company. Inc.), 237 NLRB 1386, 1388 (1978); Painters and Drywall Finishers, Local No. 79 (Richard O'Brien Plastering Co.), 213 NLRB 788 (1974). 5 International Union of Operating Engineers Local 571, A FL -CO (J. E. D. Construction Company, Inc.), Jupra at 1389; Local 87, International Associ- ation ofHeat and Frost Insulators and Asbestos Workers, A FL CIO (Sam. P. Wallace Company, Inc.), 163 NLRB 899 (1967). 6 Cementn Masons Local Union No. 577 (Rocky Mountain Prestress, Inc.), 233 NLRB 923 (1977). 'N.LR.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, A FL CIO lColumbia Broad- coasting Systemj, 364 U.S. 573 (1961). held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience reached by balancing those factors in- volved in a particular case.8 The following factors are relevant in making the determination of the dispute before us: I. Skills and training The record reveals that the demolition and cleanup work to be performed at the Corinthian Towers ren- ovation site requires no special training or skills, and that the carpentry work to be performed at the ren- ovation site requires general carpentry skills plus spe- cific skills depending on the type of work being per- formed. However, the record does not reveal whether employees represented by Local 1027, Laborers Local 502, or Carpenters Local 1342 possess the skills neces- sary to perform the work in dispute. Accordingly, this factor does not aid us in the determination of the present dispute. 2. Area and industry practice There is no evidence in the record as to whether there is a clear-cut area or industry practice of assign- ing the work in dispute to employees represented by any particular union. Accordingly, this factor does not aid us in the determination of the present dispute. 3. Employer practice The record reveals that laborers and carpenters supplied by Local 1027 currently are performing the renovation work at the Corinthian Towers jobsite. Since this is the only evidence in the record as to the Employer's practice in assigning the type of work in dispute, this factor favors an award of the work in dispute to employees represented by Local 1027. 4. Efficiency and economy The record reveals that the Employer would expe- rience no greater efficiency and economy of operation by utilizing employees represented by Respondent Unions rather than employees represented by Local 1027. Accordingly, this factor does not aid us in the determination of the present dispute. 5. Employer preference The Employer assigned the work in dispute to em- ployees represented by Local 1027. The Employer re- peatedly indicated that it prefers to assign the work in I International Association of Machinists, Lodge No. 74,. A Fl. ('10 (J. 4. Jones Construction Companv), 135 NLRB 1402 (1962). 252 ESSEX COUNTY BUILDING & CONSTRUCTION TRADES COUNCIL3 dispute to employees represented by Local 1027, and it has been entirely satisfied with the work performed by employees represented by Local 1027. Accord- ingly, we find that this factor favors the award of the work in dispute to employees represented by Local 1027. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that the employees represented by Local 1027 are en- titled to perform the work in dispute. In reaching this conclusion, we have relied on the Employer's practice and preference. In making this determination, we are awarding the work in dispute to the employees of the Employer who are represented by Local 1027, but not to that Union or its members. The present determina- tion is limited to the particular controversy which gave rise to this proceeding. 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 pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: I. Employees of Index Construction Corporation who are represented by Local 1027, The Federation of Employees Union, are entitled to perform the dem- olition, carpentry, and cleanup work for the Index Construction Corporation at the renovation of an ex- isting structure called Corinthian Towers, 67 South Munn Avenue, East Orange. New Jersey. 2. Essex County Building and Construction Trades Council, and its Constituent Members; Local 502, In- ternational Laborers' Union of North America. AFL-CIO; and Essex County and Vicinity Carpen- ters and Millwrights, Local Union 1342, AFL-CIO. are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Index Con- struction to assign to work in dispute to employees represented by those labor organizations. 3. Within 10 days from the date of this Decision and Determination of Dispute, Essex County Build- ing and Construction Trades Council, and its Con- stituent Members; Local 502, International Laborers' Union of North America, AFL-CIO; and Essex County and Vicinity Carpenters and Millwrights. Lo- cal Union 1342, AFL-CIO, shall notify the Regional Director for Region 22, in writing, whether or not they will refrain from forcing or requiring the Em- ployer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination. 253