Local Union No. 42, Laborers

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 42, Laborers International Union of North America, AFL-CIO and R. B. Cleveland Company and St. Louis District Council, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO. Case 18-CD-333 July 28, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by R. B. Cleveland Company (herein the Employer), alleging that Local Union No. 42, Laborers International Union of North America, AFL-CIO (herein the Respondent or the Laborers), violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Neil E. McDarby, on November 21 and December 2, 1969. All parties were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses , and to adduce evidence bearing upon the issues. Thereafter, the Employer, the Respondent, and St. Louis District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein the Carpenters), party to the contract, filed briefs. 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 powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error . They are hereby af- firmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated as follows: The Employer, a Missouri corporation, is en- gaged, in the city of St. Louis, Missouri, and its en- virons, in the construction business as an accousti- cal contractor. During the past year the Employer, in the course and conduct of its business opera- tions, purchased acoustical tile and other materials valued in excess of $50,000, which tile and materi- als were shipped directly to it in the State of Mis- souri from suppliers in States other than the State ' Absent allegations of threats and absent credibility findings , we decline to consider controverted testimony, denied by Huhhan, that on this and other occasions during the course of the background events herein of Missouri. 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 policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Laborers and the Carpenters are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background of the Dispute The Employer is the subcontractor for the instal- lation of all acoustical tile at the 30-story Laclede Gas Building project site on Eighth Street between Olive and Pine Streets in St. Louis, Missouri. Its work force includes 22 carpenters, 2 truckdrivers, and I sheet metal worker. Since it commenced operations some 15 years ago, the Employer has as- signed all acoustical tile work, including the loading and distributing thereof, to employees represented by the Carpenters. ° On September 8, 1969, John Hulihan, the Laborers steward at the jobsite, approached Ed- ward C. Cleveland, the Employer's vice president, and asked him not to permit employees represented by the Carpenters to unload a truckload of acousti- cal tile, on the ground that this was work belonging to employees represented by the Laborers. Cleve- land replied that the work had always been per- formed by carpenters represented by the Carpen- ters. When Cleveland ordered the Carpenters to commence unloading the tile, Hulihan said something to the hoist operator on the job. Thereafter, the hoist, onto which only two pallets of material had been unloaded, ceased operations. Hulihan admitted asking Cleveland not to use the carpenters on the unloading job, but denied that he threatened Cleveland with a work stoppage, and was corroborated by the hoist operator in denying that he told the latter not to operate the hoist.' Thereafter, Cleveland, at Hulihan's request, con- ferred with Cecil Sims, an official of the Laborers Council, who advised him of a letter from the Na- tional Joint Board for the Settlement of Jurisdic- tional Disputes (herein the National Joint Board), dated July 25, 1969, awarding to the Laborers the work of unloading acoustical tile at the Famous- Barr, Northwest Plaza Shopping Center job. Cleve- land replied that the award specifically applied to presented he threatened physical harm and work stoppages if the Laborers were not accorded the work in dispute LOCAL UNION that job only, and that on the Laclede job, the Em- ployer had assigned the job to the Carpenters. A similar conversation between Cleveland and Anthony R. Pelker, the Laborers business manager, likewise produced no agreement . That same after- noon , Cleveland , in response to an inquiry from Pleasent Jenkins, then a business representative for the Carpenters, assured him that the unloading work had been assigned to the Carpenters. There was no further unloading work that day. On September 11, at Pelker's urging, Cleveland went to the Laborers office and signed a collective- bargaining agreement in order , according to Cleve- land, "to establish a mutual relationship with the Laborers that in the event in some future time if work was assigned to the Laborers we would have a relationship or a mutual relationship with them." Between September 11 and 25 , the Employer was unable to deliver material , due to minor confronta- tions with the Laborers and the Carpenters at the jobsite. On September 25, the Employer, after con- siderable pressure from the general contractor, requested Pelker to send four laborers to the jobsite on September 26, which he did. As grounds for this request, Cleveland testified that the Employer did so because it was "literally forced into the position of trying to work an agreement out, even to the ex- tent of employing Laborers to get the material in." The Employer discharged the laborers at the end of the day and has never since hired laborers. On October 3, Hulihan confronted Royal Kitchen, the Carpenters job steward, with a request not to move acoustical tile shipments on the ground that it was Laborers work. Kitchen accomplished the unloading notwithstanding Hulihan's remon- strances. On October 6, Hulihan requested Burton Roark, the Carpenters foreman on the job, to tell his men to quit moving the acoustical material. Roark refused. B. The Work Stoppage of October 9, 1969 On October 8, Cleveland , in anticipation of a scheduled delivery on the following day, requested Jenkins to send our additional employees from the Carpenters hall, notified Pelker of the delivery, and asked him to be at the jobsite if he wished to re- gister a complaint over the assignment of the work to the Carpenters . He further notified the St. Louis police that there might be some trouble. On October 9, eight carpenters commenced un- loading a truck containing about 100 cartons of acoustical tile. Pelker with 12 laborers approached them, and a discussion developed. By Pelker's own admission, a laborer nonemployee got up into the truck and started unloading it, notwithstanding that NO. 42, LABORERS 687 two carpenter employees were unloading tile packages inside the truck. A fight ensued, during which a considerable amount of tile in the process of unloading was knocked to the ground from the employees' shoulders and damaged . The police quelled the disturbance and directed that there be no more deliveries until the dispute was settled. No further deliveries were attempted until November 19, 2 days before the instant hearing . The Em- ployer has at no time attempted to submit the dispute to the National Joint Board , having been advised by the National Acoustical Contractors' Association , with which it was affiliated , that the Board was dissolved or inoperative as of September 30, 1969. C. The Work in Dispute The dispute concerns the unloading and distribu- tion of acoustical tile at the Laclede Gas Building jobsite in St. Louis , Missouri. D. The Contentions of the Parties The Laborers contends that there is no jurisdic- tional dispute cognizable under Section 10(k) of the Act, because there was an agreed-upon method of arbitrating the dispute through the National Joint Board ; that the record does not establish reasona- ble cause for believing that the Laborers engaged in conduct violative of Section 8(b)(4)(D) of the Act; and that the work in dispute should be awarded to the Laborers. Cleveland and the Carpenters con- tend , on the contrary, that the agreed-upon method of arbitrating the dispute was at no time herein available to the parties, that the record establishes reasonable cause for believing that the Laborers en- gaged in conduct violative of Section 8(b)(4)(D), and that the work in dispute should be awarded to the Carpenters. E Applicability of the 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. As set forth above, uncontroverted testimony shows that on October 9, 1969 , nonem- ployees represented by the Laborers, in the presence of the Laborers business manager, en- gaged employees represented by the Carpenters in a fight to prevent the latter from unloading and dis- tributing acoustical tile at the Laclede Gas Building jobsite, in order to require the assignment of that work to workers represented by the Laborers, thus 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clearly establishing a prima facie case supporting the alleged violation of Section 8(b)(4)(D). We find without merit the Laborers contention that the instant dispute is properly arbitrable before the Na- tional Joint Board. While it is true that all parties to the dispute did contractually agree to submit ju- risdictional work disputes to the National Joint Board, as the Laborers states, the record evidence clearly shows that during the critical period from September 30, 1969, through the completion of the hearing , on December 2, 1969, the National Joint Board was inoperative. We therefore conclude that at no time material to the adjustment of the instant dispute has the National Joint Board been available for providing a voluntary method for settling the in- stant dispute. Accordingly, we find that there is a reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) of the Act has occurred, and that the dispute is properly before the Board for deter- mination under Section 10(k) of the Act. F. Merits of the Dispute Section 10 ( k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to all relevant fac- tors . In International Association of Machinists, Lodge No. 1743, AFL-CIO Q. A. Jones Construc- tion Co. ),' the Board set forth the following criteria to be considered in the making of an affirmative award in a Section 10 ( k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute , e.g., the skills and work involved, cer- tifications by the Board , company and industry practice , agreements between unions and between employers and unions , awards of ar- bitrators , joint boards, and the AFL-CIO in the same or related cases , the assignment made by the employer , and the efficient operation of the employer 's business.3 1. Work and skills involved The packaged acoustical tile, of varying types, textures, and color, with its associated hardware, arrives at the several jobsite locations in individual truckloads. The unloading and distribution of the tile requires a degree of care due to its relatively fragile character. As the tile is generally moved directly to its installation area within the Laclede jobsite, and as the major portion of the installation work involves small remodeling jobs requiring but a few carpenters, a knowledge of the installation ' 135 NLRB 1402. Id. at 14 10-11. work and worksites, based upon job experience, is desirable for purposes of unloading and handling tile. 2. Efficiency of operations Although generally claiming the work of unload- ing and distributing acoustical tile, the Laborers at- tach specific conditions to their claim which in our opinion could substantially lower the efficiency of the Employer's current loading and distribution operations. Thus the Laborers would handle tile only and would refuse to handle the associated packaged hardware which regularly accompanies tile shipments. They would also insist upon dis- tributing tile to so-called stockpiles, notwithstand- ing that stockpiling at the Laclede project appears rare or nonexistent.4 They would not distribute the tile from stockpiles to installation points on the iobsite, nor would they claim unloading work of less than 2 hours' duration. On the other hand, they would demand a minimum of 4 hours' pay for 15 minutes' work. An application of the Laborers claim to the work in dispute could, in our opinion, result in the fol- lowing foreseeable operating inefficiencies: the en- listment of dual crews to unload acoustical tile and associated tile hardware, or whenever stockpiling occurs; jurisdictional disputes over the definition of "stockpile"; the burden of timing each unloading to accord with the Laborers jurisdictional 2-hour time limit; and the added expense of paying laborers a 4- hour minimum for 15 minutes' work. Further foreseeable inefficiencies could arise from the fact that truck deliveries cannot be scheduled with precision, due to the multiplicity of unloading stops, each of varying duration, at the several jobsite locations during the course of a delivery trip. This being so, the Employer could be faced with two alternative wasteful procedures between loadings, either to permit laborers to ride in the truck cabs from one unloading site to the next, or to have them idly await the next delivery at a single location. Minimum pay demands could add con- siderably to unloading expenses. Unloading could be needlessly held up, pending delays in the hiring or the arrival of laborers. Additionally, there is the ever-present possibility of jurisdictional labor strife attendant upon the simultaneous presence of rival work crews at the same unloading or distribution site. Still other inefficiencies might stem from the fact that laborers, with more limited knowledge of the many individual installation sites and the in- 4 The Employer contends that stockpiling, in the conventional sense of the term , does not exist at the Laclede jobsite. LOCAL UNION NO. 42 , LABORERS dividual requirements of each, might require the added expense of special briefing and supervision. The instant record provides no cogent opera- tional or economic reason for altering the current apparently satisfactory arrangement of many years' duration between the Employer and the Carpenters for the handling and installation of acoustical tile and associated hardware. 3. Company and industry practice Except for the above-noted single instance of 1 day's duration, the Company, throughout its 15- year history, has never hired employees represented by the Laborers for handling tile or otherwise. The employment of employees represented by the Car- penters for handling tile has been the uniform prac- tice of both the Employer and St. Louis Acoustical Contractors' Association, of which the Employer is a member. The Laborers makes no uniform claim to all of the unloading work at the Laclede project, but on the contrary has not claimed the work of un- loading trucks for electrical contractors, plumbing contractors, or sheet metal contractors , such work being assigned to Electricians , Plumbers, and Sheet Metal Workers, respectively. Nor have the Laborers claimed the unloading of floor tiles used on the Laclede project. 4. Agreements between the Company and the Unions The current contracts between the Company and the Laborers and Carpenters, respectively, were negotiated by Associated General Contractors of St. Louis . Both contracts contain identical language to the effect that nothing in the agreements shall be construed to define or determine any craft or work jurisdiction or the recognition thereof by the Em- ployer. The Carpenters contract contains a job clas- sification of journeyman carpenter to which the Company has assigned the work. 5. National Joint Board awards As noted above, it appears that as of the time of the instant hearing, the National Joint Board for the Settlement of Jurisdictional Disputes was not in ex- istence. On July 25, 1969, the National Joint Board awarded identical work to that here in dispute to the Laborers in a dispute arising on the Famous- Barr, Northwest Plaza Shopping Center job in St. Louis County, Missouri. The award, however, ap- plied to that particular job only, and neither the Company nor the Carpenters offered any evidence before the Joint Board. 6. Other agreements 689 There is no agreement between the Laborers and the Carpenters concerning the proper assignment of the work in dispute, nor are there any arbitration awards concerning the same. Conclusions Upon the record as a whole, and after full con- sideration of all relevant factors involved, we be- lieve that the employees of the Employer who are currently represented by the Carpenters, rather than individuals represented by the Laborers, are entitled to the work in dispute. We reach this con- clusion relying upon the Employer's assignment of the disputed work to its own employees, the fact that the assignment is consistent with the Em- ployer's past practice, the current bargaining con- tract, the fact that the employees represented by the Carpenters possess the requisite skills to per- form the work, and that such an assignment will promote efficiency and economy of operations. Ac- cordingly, we shall determine the dispute before us by awarding the work of unloading and distributing acoustical tile at the Laclede Gas Building jobsite in St. Louis, Missouri, to employees represented by the Carpenters, but not to this Union or its mem- bers. 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 proceeding, the National Labor Relations Board hereby makes the following determination of dispute: 1. Employees of R. B . Cleveland Company who are currently represented by St. Louis District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to per- form the work of unloading and distributing acoustical tile at the Laclede Gas Building site in St. Louis, Missouri. 2. Local Union No. 42, Laborers International Union of North America, AFL-CIO , is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require R. B. Cleveland Company to assign such work to individuals represented by Local Union No. 42. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 42, Laborers International Union of North America, AFL-CIO, shall notify the Regional Director for Region 14, in writing, whether or not they will 690 DECISIONS OF NATIONAL refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to individuals represented by Local Union 42, rather than to em- ployees represented by St. Louis District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. MEMBER FANNING, dissenting: I would not determine this dispute at this time. The record shows that the Company at all times has been party to contracts with both the Laborers and Carpenters, each of which claims to be entitled to perform the above-disputed work. The record also reveals that these contracts specifically provide that the parties thereto are bound by decisions of the National Joint Board for the Settlement of Jurisdic- tional Disputes . At the time the dispute arose and LABOR RELATIONS BOARD during the hearing in this case the operations of the Joint Board had been suspended and it was not available to the parties for the resolution of their ju- risdictional dispute . However, the Laborers now contend that the Joint Board is again in operation and is again processing jurisdictional disputes, in- cluding requests for job decisions . Accordingly, the Laborers urge that the notice of hearing in this case be quashed. In view of the foregoing, I would issue a notice to the parties to show cause why the record in this case should not be reopened to receive evidence of the current availability of the Joint Board to resolve the above-noted dispute , a method which the parties have voluntarily selected for the resolution of such disputes and why, if such be shown, this notice of hearing should not be quashed.