Laborers, Local 576

LABORERS, LOCAL 576 Laborers' International Union of North America, Lo- cal Union # 576, AFL-CIO and Franki Foundation Company and Local No. 64, United Brotherhood of Carpenters and Joiners of America , AFL-CIO. Case 9-CD-233 February 22, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge by Franki Foundation Company, herein called the Company, alleging that Laborers' International Union of North America, Local Union # 576, AFL- CIO, herein called Laborers, had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requir- ing the Company to assign certain work to employees represented by it rather than to employees represented by Local No. 64, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Car- penters. Pursuant to notice, a hearing was held before Hearing Officer Edward C. Verst on July 12, 13, and 14, 1971. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. Thereafter, the Company and Labor- ers filed briefs which have been duly considered. 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 connection with this proceeding to a three- member panel. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the follow findings: I THE BUSINESS OF THE EMPLOYER The Company is engaged throughout the United States in the construction of concrete foundations for multistory buildings. At the time of the hearing, it was so engaged at a construction project in Louisville, Ken- tucky. During the 12 months preceding the hearing, the Company purchased goods and materials valued in ex- cess of $50,000 from firms outside the State of Ken- tucky, which are shipped directly to the Company's jobsite in Louisville. We find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 195 NLRB No. 96 II THE LABOR ORGANIZATIONS INVOLVED 511 Laborers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute At the time of the hearing herein, the Company was engaged as a subcontractor in the construction of con- crete foundation footings (pilings) to support a multi- story building in Louisville, Kentucky. The Company, which began operating in the United States in 1951, uses the "Franki Pressure Injected Foot- ing" process (P.1.F) in building the footings below ground level. This process is unique and relatively new in the United States . In the construction of the uncased footings the Company uses a special machine known in the industry as a Franki rig. The machine consists of, inter alia, a vertical tower with cables and pulleys used to raise and lower an impact hammer, and a bucket and hopper from which increments of concrete are placed into the soil through a drive tube to construct the foot- ings. The impact hammer is used to force the drive tube to a desired depth in the soil. The Franki rig requires a crew of seven men; i .e., two hoist men who are members of the Operating Engineers Union, and five piledrivers, including a foreman, all of whom are members of the Carpenters. The hoist men are responsible for actual operation of the machinery ; that is, the raising and lowering of the drive tube, the impact hammer, the bucket , and the hopper. There is no dispute concerning the performace of this work by members of the Operating Engineers Union. At the beginning of the operation the piledriver crew is responsible for the proper leveling of the machine over the site of the uncased foundation footing. This sometimes require the shoveling of dirt by the use of hand- shovels, or the insertion of lumber as shims under the machine and the removal of excess dirt and debris from the immediate area of the rig. At the second step the drive tube is pulled and sunk to the desired depth into the soil by using the impact hammer to compress and to drive a plug of granular material to form the base of the footing at the lower end of the drive tube. The third step is the transfer of concrete by chute from the transit mix truck into the hopper, thence to the bucket which is raised by the rig to the top of the drive tube. At the fourth step small increments of concrete are injected into the tube and compressed by the impact hammer, which also drives the material out of the bot- tom of the tube into the surrounding subsoil, thus form- ing the base of the pile . The tube is then gradually withdrawn to the surface while additional increments of concrete are injected into the tube and compressed 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the impact hammer until the footings reach their intended height. Although the finished product ends up in the ground as a "pile," the method of inserting it is not strictly a "driving" operation because of the unique Franki sys- tem which apparently is different from other "pile driv- ing" operations. But since the finished product resem- bles a "pile," the Company has abided by the Carpenters claim that the work belongs to its members, and for many years has assigned members of that Un- ion exclusively to the Franki crew. B. The Work in Dispute The disputed work concerns the manning of the Franki rig used in the construction of concrete founda- tions, handling, shoveling, and dumping of concrete, sand, and gravel; the transfer of concrete to the hopper from a transit mix truck and the moving of concrete within the hopper; the shoveling of dirt or the leveling of soil around the rig; the hauling by wheelbarrow of sand and gravel; and the placing of these materials into the hopper and bucket. C. Contentions of the Parties The Company's position is basically one of neutral- ity. The Company, even though satisfied with the per- sonnel supplied by the Carpenters, has no objection to a composite piledriver crew; i.e., two laborers, a fore- man, and two carpenters with pile-driving skill and experience. However, it argues strongly that the size of the crew should not be increased because of high labor cost. The Carpenters contends that the work in dispute should be awarded to its members who have tradition- ally and historically performed the work. The Laborers contends that the work in dispute should be awarded to its members because a collective- bargaining contract between General Contractors As- sociation of Louisville, Inc., and the Laborers' Interna- tional Union has been adhered to by the Company. The kind of work involved is normally and traditionally performed by laborers; the assignment of a composite crew would be feasible; and its claim to the work has been recognized by the National Joint Board for the Settlement of Jurisdictional Disputes and the Interna- tional Unions involved. All parties agree that the award should be applicable to similar disputes between the two labor organizations wherever the Company operates in the United States. D. Applicability of the Statute The charge herein alleges a violation of Section 8(b)(4)(D) of the Act. The facts show that the Com- pany assigned the work to its employees who are mem- bers of the Carpenters. The Laborers demanded that the Company take the work away from carpenter pile- drivers and assign it to laborers. The parties stipulated that, when the Company refused to comply with this demand, the Laborers picketed the premises and caused a work stoppage. Accordingly, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors.' 1. Certification and collective-bargaining agreements As there is no Board certification of either union, neither Laborers nor the Carpenters is favored by this factor. As noted supra, the Company assigned the work in dispute to its employees who are covered by its collec- tive-bargaining agreement with the Carpenters. The Laborers argues that the collective-bargaining agree- ment between the Laborers' International and General Contractors Association of Louisville, Inc., to which the Company adhered, requires the Company to assign the disputed work to members of the Laborers. How- ever, as both agreements are very broad in reference to work jurisdiction of each union, the contracts are not helpful in determining which group of employees should be awarded the work. 2. National Joint Board Contrary to the contentions of the Laborers, we find that the right of the Laborers to the disputed work has not been recognized by the Joint Board and the parent International Unions. In support of its contention the Laborers submitted several exhibits which purport to show that the Na- tional Joint Board has entertained requests by both labor organizations to resolve the dispute related to the work herein. The record shows, however, that the awards in question did not pertain to the specific work here in dispute, nor did the Carpenters agree to abide by those awards after they were rendered. International Association of Machinists, Lodge No 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402, 1411 LABORERS, LOCAL 576 513 3. Area, employer, and industry practice The record shows that the Franki system is unique, and the practice of the Company, in every area in which it has operated , has always been to employ carpenter piledrivers to do work which is connected with the rig operation in building its foundation footings . Thus, al- though the work in dispute possibly may be claimed by either one of the contending unions , the historical prac- tice shows that only carpenter piledrivers have been hired as crewmembers by the Company. Accordingly, we find this factor strongly favors the Company's as- signment. 4. Skills and efficiency There is no doubt that members of both unions are capable of doing the disputed work. However, we can find no factor related to skill or efficiency which would support taking the work away from the employees do- ing the work and assigning the work to employees represented by the Laborers. The record shows that there have been no complaints by the Company regard- ing the work of employees who are members of the Carpenters, and that they are efficiently performing their required tasks. This gives rise to the inference that their continued employment is consistent with the effi- cient operation of the Company's business and sup- ports the continued assignment of the work to members of the Carpenters. F. Conclusions as to the merits of the dispute In view of the foregoing, we believe that the work in dispute should be awarded to employees represented by the Carpenters . The fact that the Company 's assign- ment conforms to its own long-established practice, and that carpenter piledrivers employed by the Com- pany not only have the requisite skills but are familiar with all facets of the work in dispute and the attendant efficiency of operations, lead us to conclude that the Company's assignment of the work is the proper one. Therefore, we shall determine the dispute by assigning the work in question to employees represented by Car- penters. In making this determination , we are not as- signing the work to the Carpenters or its members. G. Scope of the assignment All parties request that the Board determine the dis- pute on a nationwide basis . Accordingly , because of the long history of the same controversy between the two labor organizations involved , which all parties believe will continue at future projects, our determination will cover assignment of the disputed work in any area where the Company operates and whenever the geo- graphical jurisdiction of the Carpenters and Laborers coincide.' DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- 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 hereby makes the following determination of the dispute. 1. Employees of Franki Foundation Company em- ployed as carpenter piledrivers who are represented by locals of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, rather than employees repre- sented by locals of Laborers' International Union of North America, AFL-CIO, are entitled to perform the work on the Franki rig in the construction of uncased foundation pilings, including pouring, handling, shov- eling, and dumping of concrete, sand, and gravel, and the use of shovels and wheelbarrows for clearing debris and leveling dirt in the vicinity of the machine. 2. Laborers' International Union of North America, Local Union # 576, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Franki Foundation Company to assign the above work to laborers represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute , Laborers' International Un- ion of North America, Local Union # 576, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether it will refrain from forcing or requir- ing Franki Foundation Company , by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by locals of the Laborers rather than to employees represented by locals of the Carpen- ters. S Local Union No 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Company, Incorporated), 141 NLRB 888, fn 12