Pile Drivers, Local 1966

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pile Drivers, Millwrights & Window Erectors Local No. 1966, affiliated with United Brotherhood of. Carpenters and Joiners of America , AFL-CIO and Raymond International , Inc. and Laborers In- ternational Union of North America, Local No. 478, AFLr-CIO. Case 12-CD-143 July 31, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by Raymond International, Inc., hereinafter called Raymond or the Employer, alleging that Pile Drivers, Millwrights & Window Erectors Local No. 1966, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter called the Pile Drivers or Carpenters, violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that the Pile Drivers engaged in, and induced and encouraged employees of Raymond to engage in, a strike or work stoppage with an object of forcing and requir- ing Raymond to assign certain work to its members rather than to members of Laborers International Union of North America, Local No. 478, AFL-CIO, hereinafter called Laborers. Pursuant to notice a hearing was held before Hearing Officer Leonard Bass on March 11, 16, 30, and 31, 1970.' All parties were represented at the hearing and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce evidence bearing on the issues. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Laborers filed a brief which we have duly considered.2 Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that Raymond Interna- tional, Inc., is a New Jersey corporation licensed to All dates cited occurred in 1970, unless otherwise specified. ' The Employer filed a motion to reopen the record We find it unneces- do business in the State of Florida and the 49 other States. During the past 12-month period it purchased and received goods and materials shipped directly to it in Florida from points outside of Florida valued in excess of $50,000. Therefore, we find that Raymond is engaged in interstate commerce within the meaning 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 Pile Drivers and the Laborers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is engaged in all 50 States in the setting and driving of foundation piling for all types of structures, including buildings, bridges, and highway facilities. On or about December 30, 1969, Raymond, as subcontractor, commenced opera- tions at the construction site of the First Federal Bank Building in Miami , Florida. Performance of this project by Raymond involved its furnishing of all requisite equipment, labor, supplies, and materi- als, along with the actual setting of the piles to but- tress the foundation at the projected building. On this job the Employer utilized its usual technique of setting cast-in-place concrete piles contained in shell casings. Upon hardening, these components constitute the foundation support piles. The shell casings used were shipped to Miami by rail or truck and received by Raymond at a yard away from the First Federal job location. These metal shell casings are 16-foot cylinders and are similar in appearance to corrugated culvert pipe. On December 30, 1969, and January 6, 1970, W. Trapani, Local 1966 business agent for the Pile Drivers, appeared at the jobsite and advised the Employer's superintendent that the Pile Drivers was claiming all of the work entailed in handling pile materials, including the loading, unloading, and moving of the shell casings. Trapani was informed that in accord with Raymond's longstanding prac- tice, the handling of shell casings in and around the jobsite was to be assigned to laborers. As for the piledrivers, they were to be responsible for moving and handling their own equipment components and accessories and, in general , would only move or dis- sary to rule upon this motion in view of our determination herein that the disputed work be assigned to employees represented by the Laborers. 184 NLRB No. 88 PILE DRIVERS , LOCAL 1966 727 tribute pile materials when machinery was used for that purpose.3 Thus rebuffed, Trapani persisted in prosecuting the Pile Drivers claim for the disputed work until on January 8 the piledrivers engaged in a work stoppage at Trapani's behest under the guise of walking off the job to attend a safety meeting.' Additional work stoppages by the -piledrivers oc- curred on January 9 and 12 in furtherance of their claim for the disputed work. On January 14 and 16, more conferences between the Pile Drivers and Raymond ensued involving Trapani and H. Lewis, senior business agent of the Carpenters' District Council, and Raymond's southern construction manager, J. Newhard, along with certain other em- ployer officers . During these discussions , the Pile Drivers representatives also sought to reinforce their demand for the subject jobsite pile material handling work by maintaining that Raymond's agreement with their International Union and a newly executed agreement between the Piledriving Contractors Association and the Carpenters' Dis- trict Council, discussed infra, justified their claim. On January 19, the final work stoppage by the piledrivers occurred just prior to the Employer's fil- ing of the charge herein . On that date, Business Agent Trapani was present at the jobsite when a truckload of shell casings was delivered. Trapani warned Raymond's representatives that if the laborers essayed unloading the casings, the piledrivers would quit work. Nevertheless, laborers commenced the unloading operation; Trapani thereupon advised the superintendent that the Em- ployer was violating its contract with the Carpen- ters and upon the business agent's gesture the piledrivers walked off the job. On or about January 20, the Laborers secretary- treasurer wrote to Raymond referring to the Pile Drivers efforts to cause the Employer to reassign the disputed work to its members rather than to employees represented by the Laborers. The letter cited, inter alia, Raymond's established 15-year area practice of assigning this work to its laborers and asserted that the Laborers was prepared to press its claim for the retention of the work. Finally, also on January 20, Raymond filed its charge alleging violations of Section 8(b)(4)(i) and (ii)(D) of the Act by the Pile Drivers. B. The Work in Dispute The work which gave rise to this proceeding con- cerns the unloading, distributing, or handling of foundation pile materials at Raymond's job at the construction site of the First Federal Bank Building in Miami, Florida. More specifically, this case re- lates to the assignment of work functions pertaining to the jobsite unloading, handling, moving, and stacking in shell racks of the 16-foot tubular, corru- gated metal shell casings described supra. These casings are eventually distributed about the con- struction site where they come to rest at points 2 to 4 feet from the loci where the concrete piles are to be emplaced by the piledrivers. Most of the effort entailed is accomplished manually. C. The Contention of the Parties The Employer holds that it had properly assigned the work in question to the laborers on the bases of their satisfactory performances of past assignments as well as its prerogatives under the existing pattern of relevant collective-bargaining agreements. Contrariwise, the Pile Drivers contends that the governing collective-bargaining agreements require that the disputed work be assigned to Raymond em- ployees whom it represents. In this connection, the Respondent urges that a recent bargaining agree- ment executed late in 1969 between the Piledriving Contractors Association, the Carpenters' District Council of Miami, Florida and Vicinity, and Pile Drivers, Millwrights and Window Erectors Local No. 1966,1 is binding upon Raymond and requires that the disputed work be assigned to the piledrivers. Further, according to the Pile Drivers, Raymond is compelled by its national agreement with the United Brotherhood of Carpenters to recognize the foregoing contract as the local agree- ment which it is bound to honor.' The Laborers contends that the evidence shows that the employees it represents are entitled to the 'Also, consistent with the Employer's work assignment practices, frequently when test pilings are sunk no laborers may have been hired at such inchoate stage and , perforce , the pilednvers handle all needed materi- als See United Association of Journeymen and Apprentices of the Plumbing and Prpefttting Industry of the United States and Canada, Plumbers Local No 219, AFL-CIO (Price Brothers Company), 174 NLRB 547, where the Board found that "an additional object of the 'safety meetings' ( if not the sole object ) was to obtain for plumbers the hole-drilling work which Price Brothers had previously assigned to laborers," and that the jurisdictional dispute was properly before the Board From the record it appears that the members of the newly founded Piledriving Contractors Association did not sign their initial agreement as an association but separately , as individual members Raymond is not a signatory ' During the hearing , the Carpenters moved to dismiss the notice of hear- ing herein and the Hearing Officer properly referred the matter to the Board for its ruling The Carpenters bases the motion , in part, upon their contention that the parties had agreed to a voluntary method of resolving the dispute via its determination by the Joint Board We hereby deny the motion insofar as it is predicated upon this asserted ground, because there is no record evidence to sustain the view that the parties ever agreed to even submit this dispute to the Joint Board As for the Carpenters addi- tional arguments that the notice of hearing herein should be quashed, we shall discuss them, infra 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work and that there is no justification warranting the Employer's reassignment of the work to the Pile Drivers. It maintains that the satisfactory per- formance of these job functions by its members is reflected by the fact that Raymond has pursued the practice of assigning the subject work to laborers in this region continuously for some 15 years. Finally, the Laborers, as does the Employer, contends that there are no operative contractual provisions which in any sense buttress the Carpenters claim to the work in controversy. D. Applicability of the Statute Before the Board may proceed to a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be convinced that there is a reasonable cause to believe that Section 8(b)(4)(D) has been violated. As shown above, the record contains ample and uncontradicted evidence that commencing on December 30, 1969, and at numerous times during the month of January, the Pile Drivers sought and demanded that Raymond assign the disputed work to piledrivers rather than laborers. Further, the Pile Drivers instigated coercive work stoppages by or- dering its members off the construction job on January 8, 9, 12, and 19, while prosecuting its claim for the disputed work. Accordingly, we find that there is reasonable cause to believe that violations of Section 8(b)(4)(D) have occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act.' E. Merits of the Dispute As stated in J. A. Jones Construction Co.,' we shall, pursuant to the Supreme Court's C.B.S. deci- sion,, determine in each case presented for resolu- tion under Section 10(k) of the Act the appropriate assignment of the disputed work only after taking into account the evidence supporting the claims of the parties and balancing all relevant factors. 1. Certification and bargaining agreements There is no Board certification governing the disputed work, so neither the Pile Drivers nor the 'We note the evidence concerning the Pile Drivers proposal to Raymond that the Union would waive its purported contractual claim to the work of handling shell casings if Raymond would agree to augment its crew sizes pursuant to the terms of the new agreement between the Car- penters and the Pilednvrng Contractors Association However, Raymond never accepted this proposition and there is no persuasive evidence that the Pile Drivers ever receded from its work claim See International Union of Operating Engineers, Local 520, AFL-CIO (Home Building Contractors, Inc ), 168 NLRB 256 Laborers is favored by this factor. However, both contending labor organizations are recognized by, and have collective-bargaining agreements with, the Employer covering their respective members. The Laborers current 3-year bargaining agreement was negotiated in 1969 with the Employer through the latter's membership in the A.G.C.10 This contract does not purport specifically to assign the disputed work to the Laborers but reserves to the Employer the discretionary right to assign all work performed to any of its employees.11 As mentioned, supra, the Carpenters contends that Raymond is bound by virtue of the terms of its national agreement with the United Brotherhood of Carpenters and Joiners to recognize as the prevail- ing local agreement the contract executed late in 1969 between the Carpenters' District Council of Miami and the newly formed Piledriving Contrac- tors Association. The territorial area embraced by this agreement includes Miami in Dade County, Florida. If, in fact, Raymond were bound by the proffered agreement in accord with the Pile Drivers conten- tion, article I, section 1 thereof would constitute a factor favoring the award of the disputed work to that Union because this provision does purport to enlarge the Pile Drivers' work jurisdiction by speci- fying that it "shall include the job-site unloading and handling of all piling material, and pile cas- ings." On the other hand, Raymond urges that it is under no obligation to adhere to the Carpenters agreement with the Piledriving Contractors As- sociation because that agreement never superseded Raymond's local contract with the Carpenters negotiated through the South Florida Chapter of the A.G.C. Unlike the Piledriving Contractors As- sociation agreement with the Carpenters, the A.G.C. contract does not stipulate that the disputed work lies within the Carpenters jurisdiction. We agree with the Employer's position vis-a-vis these conflicting labor agreements for the following reasons: First, there is no evidence in the record to show that Raymond in any manner participated in negotiations incidental thereto, acquiesced in, signed, or ratified the Pile Drivers agreement with the Piledriving Contractors Association. Raymond's posture at all relevant times herein has been to repudiate or deny the Pile Drivers assertions and 9 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Co ), 135 NLRB 1402 9 N.L R.B ; v.i Radio and , Television Broadcasting Engineers, Union [Columbia Broadcasting System ], 364 U.S. 573 10 Agreement between Southeast Florida Laborers' District Council (as bargaining agent for Laborers ' Local No 478) and the South Florida Chapter, The Associated General Contractors of America , Inc (A G C ) 11 Art. IV, Working Conditions, sec 1. PILE DRIVERS, claim that it was bound by this labor agreement. In sum, Raymond has consistently disavowed the ap- plicability of the new agreement to its operations. Consequently, this circumstance is prejudicial to the Pile Drivers claim.12 Second, the Pile Drivers sought to show that based on bargaining history, the new Piledriving Contractors Association agreement was a supple- ment or extension of the 1969 bargaining between the Carpenters and A.G.C. in Dade County. There is some record evidence that certain special or sup- plemental provisions to the master contract between A.G.C. and the Carpenters were adopted by the parties in 1963 and 1966 resulting from such adjunct negotiations. These special treatment clauses as they pertained to piledrivers essentially regulated predetermined wage rates under Govern- ment contracts. However, in attempting to sustain its contention that the 1969 Piledriving Contractors Association labor agreement with the Carpenters binds all local A.G.C. members, the Pile Drivers failed to adduce convincing evidence to that end. For example, the record shows that Pile Drivers of- ficials did not, and they made no effort to, commu- nicate with the executive secretary of the local chapter of the A.G.C. before, during, or after the negotiation and execution of this new agreement. Further, as already mentioned, the area piledriving contractors who actually signed the agreement did so as individual parties and not under the aegis of the A.G.C. Accordingly, we find on this record that the bargaining agreement between the Carpenters and the Piledriving Contractors Association cannot be held to encompass the terms and conditions of employment of piledrivers employed by A.G.C. members such as Raymond who did not execute that contract. In view of the foregoing, we find that the ex- ecuted bargaining agreements between the Em- ployer, the Pile Drivers, and the Labrers do not ex- pressly cover the subject work and, thus, do not assist us in determining the proper assignment of the shell casing work. 13 2. Company and industry practices Raymond is the principal user in southern Florida of cast-in-place concrete piles encased in corru- gated tubular casings. In fact, this technique is so "Accord. International Union of Operating Engineers, local 520, AFL-CIO ( Home Building Contractors), supra "The Pile Drivers, as stated previously , moved to dismiss or quash the notice of hearing herein Pile Drivers contended that this matter was not a 10(k) dispute because the Union was only seeking to enforce or apply its new contract with the Pilednving Contractors Association , particularly those provisions governing crew sizes We have found that this is not the LOCAL 1966 729 commonly utilized by Raymond on jobs throughout the 50 States that these components are known in the industry as Raymond piles. It is not con- troverted in the record that, in the Miami area, Raymond for some 15 years has assigned to laborers substantially all of the work incidental to moving or distributing piling shell casings in and around the jobsite. The record is inconclusive as to the identity of other area piledriving contractors and the possible extent of their use of shell casings in these circumstances. However, because Raymond is such a significant element in the piledriving segment of the construction industry, we find that its long and continuous custom of assig- ning the disputed work to employees represented by the Laborers is a factor favoring continuation of this practice. 3. Relative skills and efficiency of operation It is apparent from the nature of the work in- volved that, inasmuch as its performance does not require the possession of any particular skills or training, it can be readily performed by either piledrivers or laborers. It has been mentioned, supra, that piledrivers do in fact completely handle the subject materials, especially when setting test pilings on occasions when laborers may not yet have been hired for the job. However, the Pile Drivers makes no claim that its members are more capable of satisfactorily performing the disputed work than the members of the Laborers and there is no evidence in the record to this effect. 14 Accord- ing to the Employer, its well-established practice of assigning this work to laborers on projects in the south Florida area has been totally satisfactory. From an economic standpoint, it has proved to be beneficial to the Employer to fully employ a regular crew of laborers to accomplish shell case handling along with their other related and necessary work at the jobsites. CONCLUSIONS Having considered all pertinent elements in the record, we conclude that laborers employed by Raymond are entitled to perform the work in dispute. They have proved to be as competent and skilled in doing the work as members of the Pile prevailing contract so far as Raymond is concerned, but even if it were, the Board has held that "the existence of a contract is an argument addressed to the merits of a jurisdictional dispute and not to its existence "Local 338, Plumbing and Pipefitting Industry (Valley Service Company), 157 NLRB 290 11 Local 14, Iron Workers (United Buckingham Freight Lines, Inc ), 163 i NLRB 674. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drivers, are at least as experienced, if not more so, and have demonstrably performed it to the satisfac- tion of the Employer who desires to continue this mode of job assignment on its operations. The present assignment is thoroughly consistent with Raymond's past practice in this regard for 15 years. The efficiency with which such employees may ac- complish the work of jobsite shell case handling enables the Employer to utilize fully the services of a regular crew of laborers. We shall, accordingly, determine the existing jurisdictional dispute by as- signing the disputed work to laborers employed by Raymond rather than to employees represented by the Pile Drivers. 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. Laborers employed by Raymond Interna- tional, Inc., are entitled to perform the disputed work of unloading, moving, handling, or distribut- ing piling shell casings in and around the jobsite. 2. Pile Drivers, Millwrights & Window Erectors Local No. 1966, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Raymond International, Inc., to assign any such disputed work to piledrivers who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Pile Drivers, Mill- wrights & Window Erectors Local No. 1966, af- filiated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Re- gional Director for Region 12, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed in Section 8(b)(4)(D), to as- sign the work in dispute to employees represented by that labor organization rather than to laborers represented by the Laborers.