Southern California Dist. Council

SOUTHERN CALIFORNIA DIST. COUNCIL Southern California District Council of Laborers and Laborers International Union of North America, Local 585 and Ernest W. Hahn, Inc. and Ventura County District Council of Carpenters and Carpen- ters Local 2463. Case 31-CD-35 December 8, 197,1 SUPPLEMENTAL DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 16, 1969, the National Labor Rela- tions Board issued a Decision and Order' in the above-entitled proceeding, finding that, by threaten- ing, coercing, or restraining Ernest W. Hahn, Inc., with an object of forcing Hahn and/or Masonry Builders, Inc., to assign certain disputed work to employees represented by Respondent Laborers rather than to employees represented by the Carpen- ters Union,2 the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b)(4)(ii)(D) of the National Labor Relations Act, as amended. The Board ordered that Respondent cease and desist therefrom and take certain affirmative action to remedy such unfair labor practices. In so finding, the Board reasoned that all parties to the jurisdictional dispute had agreed to be bound by the determination of the National Joint Board for Settlement of Jurisdictional Disputes, Building and Construction Industry, herein called the Joint Board, and therefore the Board accepted the Joint Board's determination without making an independent determination pursuant to Section 10(k) of the Act. Subsequently, the Board filed an application for enforcement of its Order with the United States Court of Appeals for the Ninth Circuit and the Respondent filed an answer thereto. On May 24, 1971, the United States Court of Appeals for the Ninth Circuit entered an Opinion, concluding that Masonry Builders, Inc., the Employer controlling assignment of the disputed work, had not agreed to be bound by the Joint Board's determina- tion. The court therefore denied enforcement of the Board's Order, and remanded the case for a hearing under Section 110(k) of the Act and for further proceedings consistent with the court's views.3 On August 4, 1971, pursuant to the court's remand, the Board issued its Order Remanding Proceeding to 1 180 NLRB No. 73. 2 Ventura County District Council of Carpenters and Carpenters Local 2,463, hereinafter called Carpenters. 3 N.L.R.B. v. Southern California District Council of Laborers and Laborers International Union of North America, Local 585, 443 F.2d 220 194 NLRB No. 78 471 the Regional Director in which it reopened the record for issuance of a notice of 10(k) hearing. Pursuant to due notice a hearing was held before Hearing Officer Robert G. Mayberry on August 24, 1971, at Los Angeles, California. Southern California District Council of Laborers and Laborers International Union of North America, Local 585, hereinafter called Laborers, and California Conference of Mason Contractors Associations, Inc., and Masonry Build- ers, Inc., hereinafter called Masonry,4 appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. State- ments of positions contained in letters have been filed by attorneys representing the Laborers and Carpen- ters. 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 Ernest W. Hahn, Inc. (Hahn), a general contractor, and its subcontractor Masonry Builders Inc. (Masonry), are California corporations engaged in the construction of the Esplanade Mall project in Oxnard, California. The Employers herein are engaged in interstate commerce or in operations affecting com- merce. II. THE LABOR ORGANIZATIONS INVOLVED Southern California District Council of Laborers and Laborers International Union of North America, Local 585, and Ventura County District Council of Carpenters and Carpenters Local 2463 are labor organizations within the meaning of the Act. M. THE DISPUTE A. Facts Ernest W. Hahn, Inc., is the general contractor for certain construction work at a project known as the Esplanade Mall in Oxnard, California. Hahn subcon- tracted certain masonry work to Masonry Builders. Masonry Builders has a collective-bargaining agree- (C.A. 9). 4 Although served with notice of hearing, neither Ernest W. Hahn, Inc., the Charging Party, nor Ventura County District Council of Carpenters or Carpenters Local 2463 made an appearance at the hearing. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment with Laborers. Pursuant to this collective- bargaining agreement, Masonry assigned the scaf- folding work under its subcontract to laborers. Hahn is signatory through Associated General Contractors to an agreement with both the Carpenters and Laborers. On two occasions prior to a Joint Board award of the disputed work to Carpenters, Carpenters made known its claims to scaffolding work erected to a height of 14 feet, indicated that attempt to resolve the dispute with the Laborers had been fruitless, and indicated its intention to submit the matter to the Joint Board. A representative of Respondent Local 585 was present on those two occasions when the Carpenters made known its claim. On February 19, 1969, the Joint Board served notice on Hahn and Masonry Builders that the dispute had been submit- ted to it, and on March 7, 1969, the Joint Board advised all parties that the work in dispute was to be assigned to the Carpenters. On March 12, before the award had been complied with, a representative of Hahn called Felix Espinosa of Respondent Council, asked him if he were aware of the award, and upon receiving an affirmative reply also asked Espinoza what the Laborers would do if Hahn used its carpenters to perform the disputed work as directed by the Joint Board. Espinoza replied that he would remove ally laborers from the job and would file charges with the National Labor Relations Board for money due the laborers who were entitled to the work. B. The Work in Dispute The work in dispute involves the erection and dismantling of scaffolding standing 14 feet or higher. C. The Contention of the Parties As to the merits of the dispute, the only issue now before us, Laborers contends that the evidence abundantly supports the assignment of the work to employees it represents. Though Carpenters did not enter an appearance at the hearing, it transmitted its position by letter to the Board, opposing the assign- ment of the work to Laborers. The Employer, Masonry, supported the Laborers claim for the disputed work. 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. Under settled Board policy, improper pressure by a 5 Hahn, as well as Masonry Builders, employed laborers represented by Respondent on the jobsite. union other than the one which has been assigned the work is not necessarily a prerequisite to the existence of a 10(k) dispute .6 As it appears from the record that Laborers threatened to pull its men off the job if the Employer awarded the scaffolding work to Carpen- ters, pursuant to Carpenters claim, there is reasonable cause to believe both that an object of Laborers action was to force the Employer to continue to assign all of the disputed work to individuals represented by Laborers and that a violation of Section 8(b)(4)(D) has occured. The dispute is therefore properly before the Board for determination. E. Merits of the Dispute There is no claim by either union, nor does the record indicate, that any special skill or training is required to erect and dismantle scaffolding over 14 feet high, or that either of the competing groups of employees is more capable than the other of perform- ing the disputed work. There is no certification of bargaining representative that can be said to apply to any of the employees involved in this dispute. There are other factors, however, which we find persuasive in making our determination in this case: 1. Collective-bargaining agreements The Employer subcontractor, Masonry Builders, Inc., as a member of Mason Contractors Exchange of Southern California, has had a series of collective- bargaining agreements with the Laborers. These agreements have provided that scaffolding was the work of laborers. Masonry Builders, Inc., has had no contractual relations with, and has no employees represented by, the Carpenters. In addition, contracts between various employer associations and locals of the Laborers Union in 12 counties of Southern California describe the erection and dismantling of scaffolds 14 feet or higher as being within the jurisdiction of the Laborers. 2. Company and industry practice The Employer (Masonry Builders, Inc.) has consist- ently assigned the disputed work to employees represented by Laborers. As indicated, Masonry Builders has never assigned this work to Carpenters. Much testimony was adduced to show that in the Southern California area, as well as elsewhere, it is long-established industry practice for laborers to perform this work. 6 National Press, Incorporated, 186 NLRB No. 26, and Pulitzer Publishing Company, 187 NLRB No. 35. SOUTHERN CALIFORNIA DIST. COUNCIL 3. The efficient operation of the Employer's business The laborer's duties encompass all work necessary to assist the bricklayers, such as the mixing of mortar, carrying brick and block to the masons, cleaning up excess brick and hauling it away, and spotting trucks delivering sand and cement. The scaffolding work is regarded as a regular part of the laborer's function in assisting the masons. Accordingly employment of Carpenters to perform this segment of laborer's work would be unduly disruptive of a continuing work process. Furthermore, it is clear that the laborers are capable of performing the work in dispute to the Employer's satisfaction. 4. Joint Board award Although the Joint Board decision awarding the disputed work to employees represented by the Carpenters may be a factor to be considered, it cannot be controlling, since as found by the United States Court of Appeals for the Ninth Circuit, supra, all of the parties herein had not agreed to be bound by the decision of the Joint Board. 5. Conclusion 473 evidence as to area practice, the Employer's long- standing assignment, and the collective-bargaining agreement between Masonry Builders, Inc., and Laborers Local 585, we shall determine the jurisdic- tional dispute herein by awarding the disputed work to employees represented by'Laborers. Our determi- nation is limited to the particular controversy which gave rise to this proceeding. In making this determina- tion, the Board is assigning the disputed work to employees represented by Laborers Local 585, but not to that Union or its members. 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: Employees of Masonry Builders, Inc., who are currently represented by Southern California District Council of Laborers and Laborers International Union of North America, Local 585, are entitled to perform the work of erecting and dismantling scaffolding standing over 14 feet or higher. In view of all the foregoing, particularly the