Laborers' International Union, Local 43

LABORERS' INTERNATIONAL UNION, LOCAL 43 Laborers' International Union of North America, Local 43, AFL-CIO and Skogman Construction Company of Iowa and Elick Construction Co., Inc. and Welsh & Welsh Construction Company and United Brotherhood of Carpenters and Joiners, Local308 Chauffeurs, Teamsters and Helpers Union Local 238, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Skogman Construction Company of Iowa and United Brotherhood of Carpenters and Joiners, Local 308. Cases 18-CD-170, 18-CD- 170-3, 18-CD-170-4, and 18-CD-170-2 January 29, 1975 DECISION AND DETERMINATION OF DISPUTE BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Skogman Construction Compa- ny of Iowa, herein called Skogman; Elick Construc- tion Co., Inc., herein called Elick; and Welsh & Welsh Construction Company, herein called Welsh, alleging that Laborers' International Union of North America, Local 43, AFL-CIO, herein called Labor- ers, has violated Section 8(b)(4)(D) of the Act. Skogman also filed charges against Chauffeurs, Teamsters and Helpers Union Local 238, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called Teamsters, alleging that it had violated Section 8(b)(4)(D) of the Act. The cases were consolidated and a hearing was heldbefore Hearing Officer Frank E. Kapsch, Jr., on July 24, 25, and 26, 1974, in Cedar Rapids, Iowa. 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 Laborers and the Carpenters. Pursuant tp 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 rulings of the Hearing Officer are free from prejudicial error and are hereby affirmed. Upon the basis of the entire record in this case, the Board makes the following findings: I All three Employers involved herein are members of the Cedar Rapids Home Builders Bargaining Association which has a current contract with 216 NLRB No. 57 1. BUSINESS OF THE EMPLOYERS 339 The parties stipulated, and we find, that Skogman, Elick, and Welsh, Employers and Charging Parties herein, are Iowa corporations engaged in the con- struction of residential and/or multiple unit dwell- ings, with Skogman also engaged in grading, excavat- ing, and the installation of sewer and water lines. During the past calendar year, each Employer stipulated to the purchase of goods from outside the State of Iowa of an amount in excess of $50,000. Accordingly, 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 the Laborers, Teamsters, and the United Brotherhood of Carpenters and Joiners, Local 308, herein called Carpenters,' are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Background Facts All three Employers are engaged in the construc- tion of residential and/or multiple unit dwellings in the Cedar Rapids, Iowa, area. The Cedar Rapids Home Builders Association, of which the Employers are members, was formed in the winter of 1972 and its current contract with the Carpenters was the first negotiated. The contract with the Carpenters specifi- cally authorizes the Employer to hire a carpenter's helper who is to be paid at least 50 percent of the journeyman rate. Pursuant to this contract, the Employers have generally assigned jobsite cleanup work and the removal of scrap, the work in dispute, to employee members of the Carpenters. On or about June 13, 1974,2 the Laborers and the Teamsters commenced picketing at Skogman's Ho- over Place construction site. Over the next 2 weeks, one, and in some cases both, of the Unions picketed almost all of Skogman's jobsites within the Cedar Rapids area. The picketing caused a work stoppage for all, except that employee members of the Carpenters crossed the picket lines and continued to work. The picket signs used by each of the Unions indicated on their face that Skogman was jeopardiz- ing wages, hours, and working conditions established in the area by each of the respective picketing Unions. On June 14, 1 day after the commencement of the picketing, Skogman and its attorneys met with representatives of the Laborers and Teamsters to the Carpenters. 2 Unless otherwise indicated, all dates refer to 1974. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discuss how the picketing could be stopped. Repre- sentatives from both picketing Unions indicated during that meeting that the picketing would cease immediately if Skogman signed labor agreements with each of the respective Unions and thereafter assigned the work in dispute herein to employee members of said Unions. The record indicates that Elick was picketed on or about June 20 by the Laborers. The language on the signs indicated that Elick was jeopardizing the wages, hours, and working conditions established in the area by the Laborers. The business agent for the Laborers admitted authorizing the picketing and justified his actions on the basis of a report that he had received from a member of his local to the effect that Elick was employing individuals who were allegedly performing Laborers work but who were receiving wages significantly under those established by the Laborers within the area.3 The picketing at the Elick worksite continued for about 1 week and also involved picketing of a gate reserved for employees of Elick's subcontractors. Elick agrees that the Union made no direct oral or written claims for the work, but, because of the picketing at the Skogman sites and the timing, geographic proximity, and related nature of Elick's operation to Skogman's, Elick assumed that the Laborers reason for picketing was the same as that which it had previously indicated to Skogman. The Laborers commenced picketing against Welsh on or about June 20, again using picket signs which alleged that Welsh was jeopardizing wages, hours, and working conditions as established in the area by the Laborers. Pickets were also stationed at a gate reserved for employees of Welsh's subcontractors. Welsh's owner admitted that the Laborers made no demands for a reassignment of the disputed work. Welsh filed the charge against the Laborers for the same reasons as those mentioned by Elick's repre- sentative. B. Work in Dispute The work in dispute is the jobsite cleanup work and removal of scrap from the Employers' residential construction sites. C. Contentions of the Parties The Employers contend that, under the provisions of their current agreement with the Carpenters, they are free to assign whatever work tasks they deem s The record indicates that Elick did not employ a carpenter's helper at the time the picketing commenced. 4 The Laborers Exh. I is a letter dated April 1, 1949, received from the American Federation of Labor setting forth the character of work to be performed by laborers. The letter states, in pertinent part , that laborers' appropriate to employee members of the Carpenters. The Employers further state that their agreement with the Carpenters specifically provides for the employment of a carpenter's helper. The carpenter's helper is to familiarize himself with the work of carpenters and to perform the disputed work. In accordance with the existing contract with the Carpenters, the Employers have assigned all of the tasks currently in dispute to employee members of the Carpenters. The Carpenters contends that, by tradition, area practice, and the terms of its current labor agreement with each of the three Employers involved herein, its member employees are required to perform any and all tasks on the worksite which may be assigned to them, including the removal of scrap and debris, the handling of materials, such as lumber, on the worksite; and, when the requirement arises, the driving of the debris removal vehicle referred to as a packer truck, trash truck, and/or garbage truck when said vehicle is operating within the confines of the worksite. In its brief, the Carpenters also contends that the job skills required to perform the disputed work are not unique to any of the Unions involved herein. The contract between the Carpenters and the Employers, by specifically providing for a carpenter's helper, affords the Employers a lesser wage rate for the work in dispute. Further, the Carpenters main- tains that the Laborers did not contest the perfor- mance of the work by carpenters in the homebuilding industry until said work was assigned to the carpenter's helper. The Laborers stated that they were claiming all site cleanup work, all unloading and stockpiling of lumber, and any other work being performed at the Employers' projects which would fall within the jurisdictional charter4 of its International. In its brief, the Laborers contends that it picketed the Employers only to publicize the substandard wages paid by the Employers to members of rival unions and to exert pressure on the Employers to pay wages in line with area standards, but if the Board finds that a dispute exists under Section 10(k) of the Act the disputed work should be awarded to employee members of the Laborers. Counsel for the Teamsters, the three Employers, and the Carpenters stipulated that the scope of the dispute in Case 18-CD-170-2 is limited to Skogman and the on-worksite driving of a trash removal vehicle. The Teamsters contends that the driving of such a vehicle, both on and off the Employers' duties include: tending to carpenters, tending to and mixing of all material for plastering, whether done by hand or any other process, clearing of debris from buildings.... LABORERS' INTERNATIONAL UNION, LOCAL 43 341 worksite, is solely within its jurisdiction. In early September, the Board received letters from counsel representing Skogman and the Teamsters indicating that an agreement had been reached which resolved the issue in Case 18-CD-170-2 between the Team- sters and Skogman. Counsel for the Carpenters confirmed this by letter of December 9 saying that the dispute with respect to the "packer truck" or "trash hauling truck" had been voluntarily adjusted. In the circumstances, it appears that the issue in Case 18-CD-170-2 is now moot and we shall quash the notice of hearing with respect to it.5 D. Applicability of the Statute Before the Board may proceed with a determina- tion 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. The record indicates that the Laborers picketed construction sites of all the Employers involved herein. The record also indicates that, at the June 14 meeting between Skogman, the Laborers, and the Teamsters, representatives from both Unions stated that the picketing would cease if Skogman signed a labor agreement with the respective Unions and thereafter assigned the disputed work to employee members of said Unions. At the hearing the Laborers claimed all the disputed work in its jurisdictional charter. Based on the evidence presented, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute in Cases 18-CD-170, 170-3, and 170-4 is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after taking into account the evidence supporting the claims of the parties and balancing all relevant factors .6 We shall set forth below those factors which we find relevant in determining the dispute herein. 1. Certification and collective-bargaining agreements There has been no evidence that the labor organizations involved herein have been certified by the Board, nor is there evidence indicating that a Board certification covers the disputed work. Neither Elick nor Welsh has a contract with the Laborers. Skogman has a current labor agreement 5 See Printing and Paper Trades Auxiliary Workers, Local No 520, AFL_ CIO (The Cuneo Eastern Press), 168 NLRB 531, 532 (1%7). 6 N.LRB. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia with the Laborers involving only its sewer and water division. Each Employer involved herein is a member of the Cedar Rapids Home Builders Association which has a current agreement with the Carpenters. The work of carpenter's helper under that contract apparently includes all of the work in dispute in this case. We therefore find that the contract with the Carpenters favors the Employer's assignment. 2. Employers practice The Employers presented evidence to indicate that in the past carpenters themselves performed the disputed work, but as their current contract with the Carpenters provides for a carpenter's helper, the Employers contend that these helpers should be assigned such work. We find therefore that this factor favors awarding the disputed work to employees represented by the Carpenters. 3. Area practice The Laborers presented two witnesses engaged in construction in the area who testified to using laborers for cleanup work; one, however, admitted on cross-examination that a large portion of his business was commercial buildings and a current condominium project was the only residential work he had done in the last 5 years; the other admitted that 80 percent of his work is commercial. Another builder of homes and apartments, who has a contract with the Laborers, testified that he uses laborers to clean up (unless carpenters do it by reason of immediate hazard) and take "it to the parking" and he then subcontracts the hauling away. The Carpenters called an assistant business agent for Local 308 who "believed" that carpenters had always done their own cleanup and he had never seen any laborers around homesites, except in one instance. We find that this factor tends to favor awarding the disputed work to employees represented by the 'Carpenters. 4. Awards of Joint Board The Laborers submitted two awards from the National Joint Board granting work to employees represented by the Laborers rather than those represented by the Carpenters. The Carpenters challenged the relevancy of these awards on grounds that the dispute therein involved construction sites Broadcasting System], 364 U.S. 573 ( 1961); International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402,1410-11 (1%2). 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located in Washington and Ohio and that the work in dispute was that of distributing drywall to stockpiles and unloading lumber. We thus find that this factor favors neither the Laborers nor the Carpenters. 5. Extent of award At the hearing the Employers moved to expand the scope of the award to include all of their residential construction sites in Linn, Benton, and Jones Counties, Iowa, urging the broad award as coexten- sive with the geographical jurisdiction of the Carpen- ters. The Laborers opposes the broad award.? We note that no evidence was offered on behalf of the Employers demonstrating the need for an award broadened in scope. We shall therefore make an award limited to the Cedar Rapids jobsites which gave rise to this proceeding, as is customary. Conclusion Upon consideration of all pertinent factors in the entire record, we conclude that employees represent- ed by the Carpenters, rather than the Laborers, are entitled to perform the work in dispute. In reaching this conclusion we have taken particular note of the evidence of the Employers' assignment to the Carpenters, the fact that such assignment is generally in accord with the Employers' past practice, and the existence of the bargaining agreement between the Employers, through the Cedar Rapids Home Build- ers Bargaining Association, and the Carpenters. In making this determination, we award the work to the employees of the Employers who are represented by the Carpenters, but not to that Union or its members. Our present determination shall cover only the r At the hearing the Laborers and the Teamsters filed a motion for continuance to prepare for response to the request of Employers. The Regional Director denied the motions and the Unions appealed to the Employers' residential construction sites in the Cedar Rapids, Iowa, area which were picketed. DETERMINATION OF THE 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 Skogman Construction Compa- ny of Iowa, Elick Construction Co., Inc., and Welsh & Welsh Construction Company, who are currently represented by the United Brotherhood of Carpen- ters and Joiners, Local 308, are entitled to perform the jobsite cleanup work at the Employers' jobsites in Cedar Rapids, Iowa, which gave rise to this proceed- ing. 2. Laborers' International Union of North Amer- ica, Local 43, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) to force or require the above Employers to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers' Interna- tional Union of North America, Local 43, AFL-CIO, shall notify the Regional Director for Region 18, in writing, whether or not it will refrain from forcing or requiring the Employers, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination. The notice of hearing herein, insofar as it relates to Case 18-CD-170-2 involving Employer Skogman's packer truck or trash hauling truck, is hereby quashed. Board. Prior to the end of the hearing, the Board granted the continuance, but both Unions withdrew their motions.