Constr. and General Laborers, Local 452

CONSTR. AND GENERAL LABORERS, LOCAL 452 Construction and General Laborers Local Union No. 452, Laborers International Union of North Ameri- ca, AFL-CIO and Eastern New York Construction Employers, Inc. and Local 78, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 3-CD-368 September 27, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges by Eastern New York Construc- tion Employers , Inc., on behalf of Wade Lupe Construction Co., Inc., herein called the Employer, alleging that the Respondent , Construction and General Laborers Local Union No. 452, Laborers International Union of North America , AFL-CIO,' had violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held in Albany, New York, on June 29, 1971, before Hearing Officer John H. Sauter, at which Local 78, United Brotherhood of Carpenters and Joiners of America 2 also appeared. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 affirmed. Upon the entire record in this case , the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer, Wade Lupe Construction Company, Inc., a New York State corporation, is engaged in building construction. In the conduct of its business operations, the Employer during the past year purchased and transferred materials valued in excess of $50,000, to its construc- tion sites within New York State from States other than the State of New York. Accordingly, the parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and i Referred to hereinafter as Laborers 2 Referred to hereinafter as Carpenters 375 (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Laborers is a labor organization within the meaning of Section 2(5) of the Act. The Employer, however, refused to enter into the same stipulation with regard to the Carpenters. The record shows that Carpenters, a member of the Albany, Schenectady, Troy, and Vicinity, District Council of Carpenters, engages in collective bargaining, processes grievances, and nego- tiates contracts on behalf of its members. According- ly, we find that Carpenters is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts The Employer is a member of Eastern New York Construction Employers, Inc., the Charging Party.3 It began construction of modern classroom facilities at RPI in Troy, New York, about November 1, 1970. On May 19, 1971, when the Employer was engaged in its first foundation and wall construction, Project Super- intendent Stannard met with the Laborers and Carpenters stewards. At this meeting, the stewards decided that the stripping of walls and foundations should be performed with a 50-50 composite crew of laborers and carpenters, and the first stripping was done that day with such a crew. The next day, Carpenters Business Agent LaCrosse came to the jobsite and presented Stannard with a copy of a 1949 Agreement between the Carpenters and Laborers Internationals which contained the Internationals' agreement that such stripping should be assigned to carpenters. On the same day, Laborers Business Agent Probeck visited the job and told Stannard that if the Employer followed the 1949 Agreement his laborers would leave the job. He also told Stannard that the procedure agreed to by the stewards should be continued since it had already been established. The next day, Stannard was given a copy of a 1969 document which the Employer had received from the Association recommending various labor assign- ments. This document stated that stripping should be assigned to members of the Carpenters and Stannard followed this recommendation by assigning the second stripping to carpenters on May 24. On that day, the Laborers steward told Stannard that if laborers were not going to do the stripping, they would leave, and the laborers did leave the jobsite that day. On one other occasion, when stripping was again 9 Referred to hereinafter as the Association. 193 NLRB No. 57 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assigned to carpenters, the laborers left the job. All stripping since the first stripping has been done by members of the Carpenters. B. Work in Dispute The work in dispute involves the stripping of the wall and column forms into which concrete has been poured . Members of the Carpenters construct the forms by first nailing two-by-fours to concrete footings and nailing plywood to the two-by-fours. The form is then braced and held together with metal snap ties and clamps . After concrete is poured into these forms and sets, the entire form has to be dismantled. It is the dismantling or releasing of these forms-the stripping-which is the work in dispute. The stripping is accomplished by first taking off the snap ties and clamps , and pulling the plywood forms away from the concrete . The task involves the use of hammers, pinch bars, and other prying tools. After the form is stripped and falls away from the concrete, laborers are used to clean the forms, remove the nails, and reoil them so that they can be reused. Members of the Laborers are also used to carry the forms to the next area on the jobsite for reconstruction by the carpenters . There is no dispute with regard to the cleaning, reoiling, and transporting of the forms. C. Contentions of the Parties The Charging Party contends that concrete form stripping should be done by the carpenters except for the last stripping on the job, which it contends the laborers should do , and urges that the scope of the award include all locals in the Carpenters District Council. The Carpenters takes the position that the Employer's assignment is correct and that the order should be limited to the particular dispute in question. Laborers, however, argues that all stripping should be assigned on a 50-50 laborer-carpenter composite crew as it had been prior to 18 months ago and as it was agreed to by the stewards . The Laborers also contends that the order should encompass those local union jurisdictions for which Carpenters Business Agent LaCrosse serves as business agent. D. Applicability of the Statute Before the Board may proceed with a determination of a 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 uncontradicted evidence discloses that on or about May 20, 1971, after Project Superintendent Stannard had received instructions from the Employ- er as to the work assignment, Laborers Business Agent Probeck visited the job and stated that if the Employer followed that assignment his laborers would leave the job . On May 24, 1971, when the second stripping was assigned to carpenters, Laborers Steward Mone stated to Stannard, after checking with the union hall, that if laborers were not assigned the stripping they were leaving . The laborers then left the jobsite for the rest of that day . In addition, about a week later, laborers left the job when carpenters were assigned stripping. On the record as a whole, and without ruling on the credibility of the testimony in issue, we are satisfied that there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. 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 various relevant factors. 1. Certification and collective-bargaining agreements As there is no evidence that a Board certification covers the work in dispute, and as neither the Laborers nor the Carpenters contracts with the Employer mention stripping, we find that these factors are not useful in making our determination. 2. Employer and area practice Although there is no evidence in the record of the Employer's practice, the facts do show that the area practice, since April 1969, has been to assign the work in dispute to carpenters . Prior to that time, stripping of concrete forms was assigned to a composite crew of both laborers and carpenters, but in the fall of 1968 numerous disputes arose with respect to such assign- ments . For this reason a committee of general contractors who are members of the Eastern New York Construction Employers, primarily from Alba- ny, Troy, and Schenectady, met and decided that, on the basis of efficiency and economy of operation and its recent area practice, stripping would be assigned to carpenters, unless it was the last stripping on the job in which case that stripping would be assigned to laborers . This decision was also in conformance with a 1949 Agreement between the Carpenters and Laborers Internationals. The Association issued a list of recommended work assignments which contained, among other things, the recommended assignment of stripping work. The evidence shows that, since that time, members of the Association make the assign- ment of stripping operations in accordance with the April 1969 recommendations. With respect to the Troy area, the record shows that CONSTR. AND GENERAL LABORERS, LOCAL 452 377 in 1969 a dispute arose regarding concrete stripping on a project of another employer, but on the same RPI campus. This dispute was submitted to the National Joint Board for Jurisdictional Disputes which stated that the work should be assigned according to the 1949 Agreement referred to supra. The Carpenters business agent testified that since that time almost all stripping in the Troy area has been done by his members. The area practice, therefore, of assigning stripping to carpenters while assigning the last stripping on the job to laborers favors the Employer's assignment. 3. Skills, efficiency, and economy The record indicates that the actual stripping work is not difficult nor does it require any great measure of skill, and, therefore, both groups of employees possess the necessary skills to perform the work. With respect to efficiency and economy of operation, the record does not disclose the full range of the respective duties of laborers and carpenters, and therefore, there is insufficient evidence to show whether this factor favors either group. Accordingly, we find that the resolution of the dispute cannot rest on factors of skill and efficiency and economy of operation. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by the Carpenters are entitled to perform the work in dispute. This assignment is consistent with the initial assignment, and the area practice. In making this determination, we are awarding the work in question to employees represented by the Carpenters, but not to that Union or its members. The present determination 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 proceeding, the National Labor Relations Board makes the following determination of dispute: 1. Employees of Wade Lupe Construction Co., Inc., who are currently represented by Local 78, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to do all stripping of concrete forms other than the last stripping on the Employer's project at the RPI campus in Troy, New York. 2. Construction and General Laborers Local Union No. 452, 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 Wade Lupe Construction Co, Inc ., to assign the above work to its members or employees whom it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organization listed in the preceding paragraph shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring Wade Lupe Construction Co., Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members or employees whom it represents rather than to employees of Wade Lupe Construction Co., Inc., represented by Local 78, United Brotherhood of Carpenters and Joiners of America, AFL-CIO.