Heavy Construction Laborers Local 663

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heavy Construction Laborers Local No . 663, Laborers International Union of North America, AFL-CIO and Roger Guyer Construction Company and Con- struction and General Laborers Local No. 264, La- borers International Union of North America, AFL- CIO. Cases 17-CD-146 and 17-CD-147 January 25, 1972 DECISION, DETERMINATION OF DISPUTE, AND ORDER QUASHING NOTICE OF HEARING IN PART BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following the filing of charges by R. D. Neighbors, d/b/a R D N Construction Company, on behalf of Roger Guyer Construction Company, herein called the Employer, alleging that the Respondents, Heavy Construction La- borers Local No. 663, Laborers International Union of North America, AFL-CIO, and Construction and General Laborers Local No. 264, Laborers Interna- tional Union of North America, AFL-CIO, had vi- olated Section 8(b)(4)(D) of the Act. A duly scheduled consolidated hearing was held in Kansas City, Mis- souri, on October 5, 1971, before Hearing Officer R. L. De Prospero. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issue. 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 au- thority 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 proceeding, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The parties stipulated to the following: R. D. Neighbors, d/b/a R D N Construction Com- pany is a sole proprietorship engaged in the general contracting business, whose principal office and place of business is located in Edwardsville, Kansas. R D N Construction Company annually performs services valued in excess of $50,000 directly outside the State of Kansas. R. D. Neighbors, d/b/a R D N Construction Com- pany, is the general contractor on the Cloverleaf Apart- ments, Inc., construction project located at 145th Street and South 71 Highway, Kansas City, Missouri. This project, the construction contract for which is in 195 NLRB No. 22 the amount of $2,881,000, has been under construction since approximately March 1971; the anticipated com- pletion date is July 1972. R. D. Neighbors, d/b/a R D N Construction Company, has a contract to construct moderate to low income housing which upon comple- tion will be insured by the U. S. Department of Hous- ing and Urban Development. Neighbors Construction Co., Inc., located in Ed- wardsville, Kansas, a Kansas corporation, is a carpen- try subcontractor on the Cloverleaf Apartments, Inc., project at 145th and South 71 Highway, Kansas City, Missouri. Its subcontract is in the amount of $752,000 and it (Neighbors Construction Co., Inc.,) has pur- chased lumber valued in excess of $71,000, for use at the said project, which originated outside the States of Missouri and Kansas. Krogsdale Construction Company, whose office and principal place of business is located in Kansas City, Missouri, has a subcontract for concrete flatwork at said apartment project in the amount of $123,901. Roger B. Guyer, d/b/a Roger Guyer Construction Company, a sole proprietor located in Kansas City, Missouri, has a sub-subcontract with Krogsdale Con- struction Company for concrete curbs at said apart- ment project in the amount of $25,000. We find that it will effectuate the purposes of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 663 and Local 264 are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts The Employer is a sub-subcontractor constructing cement curbs on the Cloverleaf Apartments, Inc., project in Kansas City, Missouri. It began work at the project about June 18, 1971.On June 21, 1971, Richard Wiley, a representative of Local 663, informed the Em- ployer that it was doing "heavy construction" and should be using Local 663 members. As had been its usual practice since beginning business in 1970, the Employer was using laborers from Local 264. How- ever, the Employer has no written contract with Local 264. Wiley told the Employer that Local 663 would picket the job unless laborers from Local 663 were hired. At this point the Employer agreed to hire one of the Local 663 members and also signed the Heavy Con- struction contract with Local 663 effective 1969-72. The following day the employee referred by Local 663 reported for work at the project. During the course of the day the Employer had telephone conversations with HEAVY CONSTRUCTION LABORERS LOCAL 663 representatives of Local 264 who told him to get rid of the employee referred by Local 663, or else the Em- ployer would face picketing or other trouble from Lo- cal 264. At the end of the workday the Employer ter- minated the Local 663 member. On July 6, 1971, Local 663 commenced picketing the apartment complex job- site with a sign reading as follows: Unfair Roger Guyer Const. Co. Discriminated against member of Laborers Local No. 663 AFL-CIO The picketing lasted about 3 or 4 weeks. During the course of the picketing the Employer had some trouble getting deliveries of cement. Also, on the first day of picketing there was a work stoppage at the jobsite which lasted until about noontime. Employees of Neighbors Construction Co., Inc., and other subcon- tractors of the Charging Party participated in this work stoppage. B. Work in Dispute The dispute involves the assignment of the following work tasks : The laying of cement curbs in streets in a private apartment complex development at 145th Street and South 71 Highway , Kansas City, Missouri. The work involves setting steel forms in place , pouring concrete into the forms to make curbing, cleaning forms, and loading and unloading forms on trucks. The Employer normally uses a crew of five employees com- posed of two cement finishers and three laborers. The work of the cement finishers is not in issue herein. C. Contentions of the Parties Local 663 contends that the work in dispute is heavy construction and thus within its jurisdiction . Further, Local 663 contends that the work in dispute has been awarded to it in a decision of the Laborers Interna- tional Union of North America , AFL-CIO. Local 264 contends that the work in dispute is build- ing construction and thus within its jurisdiction. Fur- ther, according to Local 264, the work in dispute was awarded to it in a decision of the Laborers Interna- tional Union of North America , AFL-CIO. D. Applicability of the Statute 63 Before the Board may proceed with a determination of 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 June 21, 1971, a representative of Local 663, Richard Wiley, warned the Employer that it would be picketed unless it used members of Local 663. After it hired one mem- ber of Local 663, the Employer was told by Local 264 that it would have picketing or other trouble unless it got rid of the Local 663 member. When the Employer terminated the employee referred by Local 663, picket- ing by Local 663 began. On the first day of picketing there was a work stoppage at the jobsite. During the course of the picketing, the Employer had some trouble getting deliveries of cement. On the record as a whole, 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 determina- tion. 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. 1. Certification and collective-bargaining agreements There is no evidence that a Board certification covers the work in dispute. Moreover, although Local 663 has a written contract with the Employer, we find that the contract does not contain a valid award of the work. 2. Employer practice Since beginning business in 1970, the Employer has primarily used laborers from Local 264 in performing the work in dispute. When it has done what it consid- ered to be heavy construction, the Employer has used laborers from Local 663. 3. Employee skills and efficiency of operation The record indicates that both groups of employees possess the necessary skills to perform the work in dispute. With respect to efficiency 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. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The decisions of the Laborers International Union Local 663 contends that decisions of the Interna- tional Union awarded the work in dispute to it. Also, Local 663 contends that a letter from the Interna- tional's president demonstrates that the award was in its favor. Local 264, on the other hand, contends that decisions of the International Union award the work in dispute to it. There was no expression of intent by the Employer at any time to be bound by proceedings or decisions of the International, or evidence that it at any time accepted, or was consulted as to , the decision or proceeding related thereto. Moreover, the decisions of the International were so vague and ambiguous in their application to the present dispute that Local No. 264 construed them as favorable to its claim for the work. Accordingly, we find that the decision of the Interna- tional is not dispositive of this dispute. CONCLUSIONS Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by Local 264 are entitled to perform the work in dispute. This assignment is consistent with the initial assignment and the Employer's practice. In making this determination, we are awarding the work in ques- tion to employees represented by Local 264, but not to that Union or its members. This determination is lim- ited to the particular controversy giving rise to this dispute. DETERMINATION OF DISPUTE lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board makes the following determination of dispute: 1. Employees represented by Local No. 264, Labor- ers International Union of North America, AFL-CIO, are entitled to perform the work of laying cement curbs on the Employer's jobsite, on the Cloverleaf Apart- ments, Inc., project at 145th Street and South 71 High- way, Kansas City, Missouri. 2. Local No. 663, Laborers International Union of North America, AFL-CIO, is not and has not been entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the above work to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local No. 663, Laborers International Union of North America, AFL-CIO, shall notify the Regional Director for Region 17, in writing, whether or not it will refrain from forcing or requiring Roger Guyer Construction Company, 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 Roger Guyer Construction Company represented by Local No. 264, Laborers International Union of North America, AFL-CIO. ORDER It is hereby ordered that the notice of hearing in this proceeding be, and it hereby is, quashed insofar as it concerns Case 17-CD-147. Pursuant to Section 10(k) of the National Labor Re-