Laborers, Local 223

LABORERS, LOCAL 223 Laborers International Union of North America, Local 223 and J. Slotnik Company and United Brother- hood of Carpenters and Joiners of America, Local 67. Case 1-CD-376 June 10, 1974 .DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by J. Slotnik Company, hereinafter called Employer or Slotnik, alleging that Laborers International Union of North America, Local 223, hereinafter called Laborers, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by Labors rather than to employees represented by United Brotherhood of Carpenters and Joiners of America, Local 67, hereinafter called Carpenters. Pursuant to notice, a hearing was held before Hearing Officer Francis X. McDonough on Novem- ber 16, 1973, and January 30, 1974. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Employer and Laborers. 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 rulings of the Hearing Officer 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 made the following findings:1 I. THE BUSINESS OF THE EMPLOYER The Employer, J. Slotnik Company, is a Massachu- setts corporation, engaged in business as a general building contractor with its principal place of business at 99 Chauncy Street, Boston, Massachu- setts. It annually receives building materials directly from points outside the Commonwealth of Massa- i The Laborers request to reopen the hearing to permit inquiry into the practice of stripping by Ceco, the slab subcontractor at the Faulkner site, is hereby denied. As the Hearing Officer correctly ruled, the stripping in connection with reinforced concrete slabs (floors) is not the same as the work here in dispute and hence has no relevance to this proceeding. 2 The Board has previously asserted jurisdiction over this Employer in 259 chusetts, the value of which exceeds $50,000. The parties stipulated, and 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.2 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. The Work in Dispute The work in dispute consists of the stripping of forms from walls, beams, and columns at the Employer's Faulkner Hospital construction project in Jamaica Plain, Massachusetts. B. Background The Employer is the general contractor for the construction of phase II of a superstructure at the Faulkner Hospital in Jamaica Plain, Massachusetts. This phase of the construction involves the necessary construction work from the foundation to the roof of the building. The superstructure is the frame of the building, that is, the outside shell. The beams, walls, columns, and slabs are concrete, most of which will be architecturally exposed. The Employer's presi- dent, Joseph Michaelson, explained the work process as follows: "The form is put up and the form is preassembled and prefabbed on the jobsite using plywood and dimensional lumber. It is then erected in place, reinforcing steel is set into it. The concrete is poured and after the concrete has attained its sufficient strength, the form is removed." After the forms are removed, they are cleaned, oiled, and placed in a stockpile for reuse. The latter process, called tendering, is not here in dispute. To perform the work at the Faulkner site, the Employer hires employees of various trades includ- ing those represented by Carpenters and Laborers with each of whom the Employer has a current collective-bargaining agreement by virtue of its membership in Associated General Contractors of Massachusetts (herein called AGC). The Employer commenced work at the Faulkner site on or about August 2, 1973,3 and the disputed work began on or about August 20 or 27 .4 There is some dispute as to which trade was Local No. 17, Sheet Metal Workers International Association (J. Slotnik Company), 197 NLRB 1127. 3 All dated are in 1973 unless otherwise indicated. " The Employer did not have a prejob conference before beginning the work and, according to Michaelson, it is the Employer's practice not to have, such conferences unless specifically requested . Here no such request was made. 211 NLRB No. 28 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD originally awarded the disputed work. The Employ- er's president, Michaelson, and Carpenters job steward, Patrick Murphy, testified that all of the stripping work on beams, columns, and walls was assigned to employees represented by Carpenters, and that these employees have consistently per- formed this work. The Laborers job steward, Thomas Beatty, on the other hand, testified that the work of stripping was assigned to a composite crew of 50 percent carpenters and 50 percent laborers. Several laborers on the jobsite also testified that they performed some of the stripping functions side by side with carpenters. As stated, there is no dispute about the work of tendering which was assigned to laborers. On October 10, Patrick Walsh, secretary-treasurer and field representative of the Laborers, appeared at the jobsite and questioned the Employer's superin- tendent, James Cotter, concerning the assignment of the disputed work to carpenters. According to Michaelson, Walsh asked Cotter to change the assignment of the work to a composite crew of carpenters and laborers and Cotter refused. On the following day, October 11, Michaelson arrived at the jobsite at approximately 8:30 a.m. and saw his employees represented by Laborers milling about and not working. Carpenters Representatives Fred Fletcher and John McSharry, Laborers Representa- tive Walsh, and Superintendent Cotter were also present. At this time, Walsh demanded that the Employer reassign the disputed work to a composite crew and threatened to pull the laborers off the job if such assignment were not made. There was a brief work stoppage and Michaelson warned Walsh that he was violating the no-strike provision of Laborers contract with AGC. Walsh replied that the only way he could enforce the work assignment to the laborers was by pulling them off the job. Following a telephone conversation between Walsh and McNally of the AGC, the laborers returned to work. On Friday, October 12, Slotnik filed the instant unfair labor practice charge with the Board's Regional office. On Monday, October 15, Laborers com- menced a work stoppage at the Faulkner site which continued until October 29. On the morning of October 15, a meeting was held at the jobsite between Michaelson, Cotter, McNally, Walsh, and Dunne, another Laborers business representative, during which Laborers again demanded that the work of stripping beams, walls, and columns be assigned to a composite crew made up of 50 percent carpenters and 50 percent laborers. The Employer refused and the strike continued until October 29.5 C. Contentions of the Parties The Employer contends that the work in dispute should be assigned to employees represented by Carpenters for the following reasons: (1) the Em- ployer originally assigned the work solely to carpen- ters and is satisfied with their work; (2) the assignment was made without a prejob conference and without objection from Laborers; (3) the Employer's practice in the Boston area is to assign this work to carpenters only; (4) the carpenters are charged with erecting the forms and consequently possess greater skill in removing them without causing substantial damage either to the forms, which are reusable, or the architecturally exposed concrete; and (5) if the work is reassigned to a composite crew, the Employer would be forced to lay off some carpenters and to hire additional laborers. Carpenters agrees with the Employer's contention, stressing that the assignment to carpenters is consist- ent with the Employer's practice, the area practice, and the collective-bargaining agreement between Carpenters and the Employer. Laborers, on the other hand, contends that the disputed work should be assigned to a composite crew of 50 percent laborers and 50 percent carpen- ters because: (1) the original assignment was made, at least in part, to laborers and subsequently was changed on or about October 10 pursuant to pressure by Carpenters; 6 (2) the collective-bargaining agree- ment between Laborers and the Employer requires assignment of the disputed work to a composite crew; (3) the recommended policy of the AGC, of which Slotnik is a member, calls for the assignment of the work to a composite crew; 7 (4) the area practice is to assign the work to a composite crew; and (5) laborers are more economical to use and are equally as skilled as carpenters to perform the work. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, 3 A petition for an injunction under Sec. 10(1) of the Act was filed by the Regional Director for Region I on October 24 and a hearing thereon was held before Judge Freeman in the Federal District Court in Boston on October 26. Judge Freeman counseled Slotnik and Laborers to resolve their dispute by noon on October 29 or return to the courtroom at that time for final disposition of the 10( 1) petition. Laborers returned the men to work by noon on October 29. 6 We take administrative notice of the fact that on October 12, 1973, Laborers filed a charge in Case l-CD-380 alleging that, since October 10, 1973, Carpenters has engaged in conduct violative of Sec. 8(b)(4)(D) of the Act at the Faulkner site. Upon investigation , the Regional Director for Region I dismissed the charge. Laborers appeal of the dismissal to the General Counsel was denied on January 16, 1974. 7 Slotnik, however, is not obligated to follow this policy. LABORERS, LOCAL 223 and (2) the parties have not agreed upon any method for the voluntary adjustment of the dispute. As • to (1) above, the record establishes that Laborers threatened to picket, and picketed, the Employer's Faulkner Hospital jobsite from October 15 to 29. The record further establishes that such picketing was to protest Slotnik's assignment of the disputed work to a crew composed entirely of employees represented by Carpenters, rather than a crew composed of 50 percent carpenters and 50 percent laborers. Accordingly, we find that reasona- ble cause exists to believe that Laborers violated Section 8(b)(4)(D) of the Act.8 With respect to (2) above, the parties agreed and the record establishes that there is no agreed-upon method, to which all of the necessary parties to the dispute are bound, for the voluntary adjustment of the dispute and that the matter, therefore, is properly before the Board for resolution .9 E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors. 1. Certifications and collective-bargaining agreements Neither labor organization has been certified to represent the Employer's employees who perform the work in dispute. The Employer, by virtue of its membership in AGC, has collective-bargaining agreements with both Laborers and Carpenters. The agreement with Carpenters provides for the assign- ment of the disputed work to employees covered by that agreement only. The agreement with Laborers provides that the disputed work shall be performed by a composite crew consisting of laborers and carpenters. Accordingly, we find that the parties' collective-bargaining agreements are not dispositive. 2. The Employer's past practice The record shows that it is the Employer's policy within the Boston area to assign the disputed work to its employees who are represented by Carpenters. Michaelson testified, without contradiction, that the assignment to carpenters on the Faulkner job was consistent with the Employer's practice. This eviden- ce, in our view, favors assignment of the disputed work to Carpenters. 8 See International Association of Bridge, Structural and Ornamental Iron Workers, Local 348, AFL-CIO (Dick Tile and Marble Company, Inc), 193 NLRB 769, 770. 3. Area practice 261 Carpenters and Laborers each adduced evidence that the practice of employers in the Boston area with respect to the work in dispute favored assigning such work to employees represented by it. From the evidence adduced on this subject, it cannot be found on this record that the area practice clearly favors either the Laborers or the Carpenters. 4. Relative skills, efficiency, and economy The Employer contends that, despite wage differ- entials between Carpenters and Laborers, the need to reuse the form material without extensive refabrica- tion makes the use of carpenters more economical for the stripping operation. These forms cost approx- imately $5 per square foot to construct and the Employer, for economical reasons, plans to reuse these panels approximately eight times during the course of the construction at the Faulkner site. For these reasons, among others, the Employer claims that it is crucial that the employees removing, i.e., "stripping," the forms be skilled in the carpentry trade. Furthermore, the Employer argues that, as the forms are initially erected by carpenters, they are better qualified to remove them from the concrete without undue damage to either the forms or the concrete which will be architecturally exposed. In addition, the tools used in stripping are the tradition- al carpenter tools of hammer, stripping bar, and wrenches. The Employer also contends that it would be inefficient in its overall operation to assign even a part of the stripping work to laborers, inasmuch as this would require it to lay off some of its carpenters. The Employer asserts that it maintains a relatively stable crew of carpenters who are proficient in many facets of the Employer's operations, not just strip- ping, in which they can be utilized on the job when they are not performing stripping work. Laborers contends that no special gift is required to perform the work in dispute and that employees represented by it possess the necessary skills to perform such work without damaging either the forms or the concrete. While it appears from the record that both carpenters and laborers possess the necessary skills to perform the disputed work, we find that the evidence of efficiency and economy supports the Employer's assignment of the work to its employees who are carpenters. 9 N LR B v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Association, AFL-CIO [Southwestern Con- struction Co.], 404 U.S. 116 (1971). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions Upon the entire record in this case, we conclude that Slotnik's employees who are represented by Carpenters are entitled to the work in dispute. We reach this conclusion based on Slotnik's past practice of assigning such work to carpenters, the fact that such assignment is consistent with the practice followed by several Boston area contractors, the fact that Slotnik's carpenter employees possess sufficient skills to perform the work, and the fact that such assignment will result in greater efficiency and economy of operations. Accordingly, we shall deter- mine the dispute by awarding the work in dispute to Slotnik's employees represented by Carpenters, but not to any labor organization of which these employees are members . In consequence, we find that Laborers is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Slotnik to assign the disputed work to employees represented by it. 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 J. Slotnik Company who are represented by United Brotherhood of Carpenters and Joiners of America, Local 67, are entitled to perform the following work: Stripping of forms from walls, beams, and columns at the Employer's Faulkner Hospital construction project in Jamaica Plain, Massachu- setts. 2. Laborers International Union of North Ameri- ca, Local 223 is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require J. Slotnik Company to assign the above-described work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers Internation- al Union of North America, Local 223, shall notify the Regional Director for Region 1, in writing, whether or not it will refrain from forcing or requiring J. Slotnik Company to assign the work in dispute to employees represented by United Brother- hood of Carpenters and Joiners of America, Local 67.