Laborers' Local 935

LABORERS' LOCAL 935 367 Laborers' International Union of North America, Local 935, AFL-CIO (Campbell Construction Co., Inc.)1 and Builders Association of Eastern Ohio & Western Pennsylvania and United Brotherhood of Carpenters and Joiners of America , Local 1438, AFL-CIO. Case 8-CD-215 November 29, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Builders Association of Eastern Ohio & Western Pennsylvania in behalf of its member Campbell Construction Co., Inc ., herein called the Employer, alleging that Laborers' International Un- ion of North America, Local 935 , AFL-CIO, herein called Laborers, had violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance , that the Laborers, by striking, or otherwise withholding services, violated the Act in that one of the purposes of the strike was to force the Employer to assign certain work to its members rather than to members of the United Brotherhood of Carpenters and Joiners of America, Local 1438, AFL-CIO (herein called Carpenters). Pursuant to notice, a hearing was held in Warren, Ohio, before Hearing Officer Sanford Gross on August 10, 1971 . 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.2 Thereafter, the Employer, the Laborers, and the Carpenters filed briefs which have been duly considered by the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 Campbell Construction Co., Inc., is an Ohio corporation engaged in the general construction 1 Employer's name appears as amended at the hearing. 2 Laborers withdrew from the hearing prior to its close. Counsel for the Laborers, prior to his departure, was advised by the Hearing Officer that the hearing would continue in his absence. 3 The notice of hearing in this proceeding states that the dispute involves "the work of hooking, unhooking, signalling and loading in connection with the moving and distribution of materials by cranes and business, and is a wholly owned subsidiary of the Jos. Bucheit & Sons Company, also an Ohio corporation. For the calendar year preceding the date of the hearing, it had a gross dollar volume of business in excess of $5 million of which approximately 10 percent represents receipts derived from work per- formed in Pennsylvania, and the remainder from work performed in Ohio. Annually, Campbell pur- chases and receives goods valued in excess of $50,000 from points directly outside the State of Ohio. The parent company, Bucheit, for the calendar year preceding the date of the hearing, had a gross dollar volume of business in excess of $17 million and received goods valued in excess of $50,000 directly from points located outside the State of Ohio. 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 Laborers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background The Employer is presently engaged in the construc- tion of an addition to, and the remodeling of, a four- story building for the Second National Bank in Warren, Ohio. Shortly after the commencement of work, in June 1970, the Employer assigned the job of power rigging to a member of the Carpenters Union. Power rigging, which is the work involved herein, includes the job of hooking, unhooking, and signaling to a crane operator, for the purpose of moving materials from stockpiles to other points on the construction site.3 The Employer's general manager, Robert Hohman, testified that the carpenter who was assigned the job of power rigging did the hooking and unhooking of forms and materials used by the Carpenters as well as materials utilized by other trades on the job. The Employer's project superintendent, Robert Murphy, testified that the carpenters only did the work of power rigging on materials used by members of the Carpenters, and that members of other unions did the power rigging for materials used by their respective other power equipment from stock piles to points of installation at the aforesaid construction site." From the record as a whole, it is clear that the work in dispute involves the power rigging of materials from the original stock piles until such materials reach the points of installation, and we interpret the work as described in the notice of hearing to include such work. 194 NLRB No. 56 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trades. Basically the work in question at the time of the dispute involved the power rigging of materials that the carpenters use in the performance of their work. In October 1970, the Employer received a letter from a representative of the Laborers, which in effect claimed that the power rigging should have been assigned to the Laborers. The Employer did not reply to this letter and heard nothing further from the Laborers until April 9, 1971, when it was advised by a representative of the Laborers that the Laborers would walk off the job the following Monday, April 12, 1971, unless the power rigging was assigned to members of the Laborers Union. On April 12, none of the laborers reported for work. A representative of the Laborers met with the Employer and stated that the Laborers wanted all the power rigging and that the men were going to continue to be, off the project. There was no formal picketing. The Laborers re- mained off the job for approximately 2-1/2 weeks after which time they returned to work without any agreement resolving the dispute. Work continued at the site during the 2-1/2 week period. The work assignment remains unchanged. Subsequent to the issuance of the notice of hearing, the Laborers sent a letter dated June 18, 1971, to the Regional Director of Region 8, disclaiming any interest in the disputed work. The laborers briefly appeared at the hearing and took the position that the hearing should not continue because the disclaimer had remedied any dispute which might have existed. B. The Work in Dispute As heretofore stated, the work in dispute is the power rigging of materials for movement from stockpiles to points of installation at the construction site. C. Positions of the Parties The Charging Party and the Employer ask that the Board adopt those provisions of the "Contractors Memorandum on Carpenters-Laborers Work As- signments," promulgated by the Builders Association. These parties contend that in accordance with the provisions of the memorandum the Employer is free to assign the work in question to either a carpenter, laborer, or composite crew, depending upon the demands of the job in question. The Employer further requested that the Board Order in this proceeding be given areawide application in view of the likelihood of recurrence. In any event, the Employer and Charging Party contend that the assignment of the disputed work herein was properly made to the Carpenters. The Carpenters agrees that the work assignment was properly made, but for different reasons. Thus, the Carpenters claims the work under its contract and the supporting area practice. The Carpenters disa- grees with the contention that the "Contractors Memorandum on Carpenters-Laborers Work As- signments" should be adopted as a means of deter- mining the manner in which "power rigging" should be made. The Laborers contends that there is no jurisdiction- al dispute before the Board because of the disclaimer filed on June 18, 1971. D. The Applicability of the Statute Before the Board may proceed to a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. As it appears that the Laborers has engaged in work stoppages to enforce its demands for exclusive assignment of the work, we find there is reasonable cause to believe a violation of the Act occurred and the dispute is properly before us for determination. With respect to the disclaimer by the Laborers, the Board has held, and we hold here, that such a disclaimer does not alter the nature of the jurisdic- tional dispute.4 Furthermore, there was uncontrovert- ed testimony at the hearing that similar jurisdictional disputes between the Laborers and Carpenters over the assignment of power rigging work occurred in other area construction sites. Neither does it appear there is any agreed-upon method for the settlement of the dispute. Therefore, since the record shows that there is an existing dispute, there is likelihood such a dispute might reoccur and that there is no agreement for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act, the Board is not precluded from making a determination in this proceeding. The Laborers Motion to Quash the Notice of Hearing is accordingly denied. 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 the various relevant factors inv6lved.5 The following factors are relevant in making a determination of the dispute before us. 1. The collective-bargaining agreements Neither Union is the certified bargaining represent- ative of any employees of the Employer, however, it 4 Laborers' International Union of North America Local 935, AFL-CIO 5 International Association of Machinists, Lodge 1743, AFL-CIO (J A (Interstate Drywall, Inc), 191 NLRB No. 93. Jones Construction Co.), 135 NLRB 1402. LABORERS' LOCAL 935 369 was stipulated that both the Laborers and the Carpenters have been recognized by and have bargained with the Employer as the collective-bar- gaining representative of its carpenter and laborer employees, and the parties are bound to collective- bargaining agreements with the Unions through the Employer's membership in the Builders Association. The terms of the Carpenters contract with the Association provide that "Where power is used in the setting or dismantling of forms, all handling and signalling shall be done by carpenters." In addition, the contract provides that the Carpenters jurisdiction extends over "the handling of rough lumber from the designated stockpile. The handling of fixtures and finished lumber from the delivery truck." Article II, section B, of the Laborers contract states that the Laborers jurisdiction extends to: Tenders: Tending masons, plasterers, carpen- ters and other building and construction crafts and mining, handling and conveying of all materials used by masons, plasterers, carpenters and other building and construction crafts whether done by hand or by any other process ... . (10) SIGNAL MEN: Signal men in all construc- tion work as defined herein ... . From the above, it is clear that the Carpenters jurisdiction extends to the hoisting of forms to the point of erection. However, the provisions of the contracts offer no guidelines as to which group of employees is entitled to the power rigging required in the movement of materials prior to that point. 2. Company and area practice As heretofore noted, the Employer assigned the disputed work to the carpenters in June 1970 and the laborers did not walk out until April 1971, although a letter was sent in 1970. The only other employer practice evident at the hearing is the statement that the Employer adheres to the "Contractors Memoran- dum of Carpenters-Laborers Work Assignments." The Carpenters representatives testified without contradiction that in the area, which includes Trum- bull County, Hubbard, Liberty Township, and Gir- ard, the Carpenters do the power rigging, with few exceptions. Employer and area practice, therefore, clearly favors an award to the Carpenters. 3. Employer's preference The Employer argues for an award to the Carpen- ters, along the lines laid down in the Contractors Memorandum, which calls for a composite crew when feasible, reserving discretion to the Employer. In the instant proceeding, the Employer chose to assign the work to the carpenters. Conclusions Based upon the entire record, and after full consideration of all relevant factors, as set forth above, we conclude that the employees represented by the Carpenters are entitled to the work in dispute. Our present determination, awarding the work to the employees who are represented by the Carpenters, but not to that Union or its members, is limited to the particular controversy which gave rise to this proceeding.6 DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board hereby makes the following determination of dispute. 1. Employees of Campbell Construction Co., Inc., who are represented by United Brotherhood of Carpenters and Joiners of America, Local 1430, AFL-CIO, are entitled to perform the , work of hooking, unhooking, signaling, and handling in connection with the moving and distribution of materials by cranes and other power equipment from stockpiles to points of installation at the construction site located at the Second National Bank building in Warren, Ohio. 2. Laborers' International Union of North Ameri- ca, Local 935, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Campbell Construction Co., Inc., Warren, Ohio, to assign such work exclusively to individuals represented by the aforesaid labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers' Internation- al Union of North America, Local 935, AFL-CIO, shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring Campbell Construction Co., Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination. 6 The Employer urges that a broad order issue covering all area construction operations . However, as the record will not support an order of such scope, nor an adoption of the Contractors Memorandum, we shall limit our award to the jobsite where the instant dispute arose Laborers' International Union of North America, Local 935, AFL-CIO (Interstate Drywall, Inc), supra, fn. 4, and the cases cited therein.