Construction and General Laborers' Local 957

CONSTRUCTION & GENERAL LABORERS' LOCAL 957 Construction and General Laborers' Local 957, Labor- ers' International Union of North America, AFL- CIO and Kaiser Refractories, a Division of Kaiser Aluminum and Chemical Corporation and Local 660, United Brick & Clay Workers of America, AFL-CIO. Case 14-CD-518 June 24, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Kaiser Refractories, a Division of Kaiser Aluminum and Chemical Corporation, herein called Kaiser or the Employer, alleging that Construction and General Laborers' Local 957, La- borers' International Union of North America, AFL-CIO, herein called Laborers, has violated Sec- tion 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring Kaiser to assign certain work to employees repre- sented by it rather than to employees represented by Local 660, United Brick & Clay Workers of America, AFL-CIO, herein called Brick & Clay Workers. A hearing was held before Hearing Officer Peter J. Salm on March 3 and 4, 1976, at St. Louis, Missouri. All parties appeared at the hearing and were afford- ed full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. Thereafter, briefs were filed by the Employer, the Laborers, and the Brick & Clay Workers. 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 rul- ings 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 Employer, a Delaware corporation, has its principal facility at Mexico, Missouri, where it is en- gaged in the manufacturing and distribution of fire clay brick. The parties have stipulated, and we find, that the Employer annually purchases and receives at its aforementioned facility goods, supplies, and mate- 89 pals valued in excess of $50,000, directly from points located outside the State of Missouri, 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 purposes of the Act to assert juris- diction herein. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Laborers and Brick & Clay Workers are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Brick & Clay Workers represents all of Kaiser's approximately 450 hourly paid employees employed at its Mexico, Missouri, facility,' pursuant to a cur- rent collective-bargaining agreement. The agreement contains as an addendum a letter of intent pertaining to situations where work is contracted out:' In the event the Company contracts out work customarily performed by the hourly Union em- ployees and such contracting out would result in the layoff of regular employees, the Company will discuss and review the situation with the Union and assign regular qualified employees to assist in the work where possible. On September 25, 1975, the Employer laid off about 30 employees in its production department. On October 3, 1975, the Employer entered into five con- 1 About 390 of these employees are production workers , 45 are plant maintenance employees responsible for repairing plant equipment and as- suring its continuous operation , 15 comprise a plant services group perform- ing a wide range of general plant work such as painting, carpentry, welding, and digging ditches 2 The addendum was agreed upon in 1969 when Brick & Clay Workers became apprehensive that a major plant modernization then being under- taken by the general contractor, Kaiser Engineers, a separate construction company , might result in the layoff of Kaiser Refractories ' own hourly em- ployees The letter of intent has been the subject of one arbitration proceeding The letter was construed in favor of Brick & Clay Workers However, in that proceeding, the arbitrator found that laid-off plant services employees of Kaiser Refractories could have been assigned to perform construction work on the aforementioned plant modernization project of Kaiser Engi- neers The arbitrator found that Kaiser Refractories could have but did not call company supervisors as witnesses to the "fact" that the employees rep- resented by Brick & Clay Workers were not capable of performing the construction work completed by Kaiser Engineers' employees Such is not the present case Here at least two construction employees from the Employer's plant services department actually employed performing the work in dispute readily admitted that they were not capable of performing the duties ordinarily performed by construction laborers represented by La- borers In any event, this arbitration award is not binding on the Laborers be- cause it did not participate therein and is, therefore, of little value in the determination of this dispute 225 NLRB No. 12 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tracts with a general contractor, Reinhardt Construc- tion Company, herein called Reinhardt, for the con- struction of several new buildings at its Mexico, Mis- souri, facility. Included with and made a part of each of these contracts was a memorandum of under- standing of the parties which provided for the use of Kaiser employees by Reinhardt. Reinhardt, through an association of contractors, has a current contract with Laborers which requires that it obtain all labor- ers it employs through the latter's exclusive referral system. On October 5, 1975, Reinhardt commenced work on the Kaiser facility. Kaiser promptly assigned two brick and clay workers from its plant services depart- ment to perform construction laborers' duties for Reinhardt. Accordingly, Reinhardt did not request or employ any laborers from Laborers. On October 31, 1975, Laborers Business Agent Gallagher told Kaiser's industrial relations superintendent, Galioto, after visiting the worksite, that there was going to be a problem because Reinhardt was not honoring a contract commitment it had with Laborers to obtain all laborers it employed from that Union's exclusive referral system. On November 3, 1975, Gallagher notified Rein- hardt by letter that, in view of the latter's refusal to request and employ members of Laborers to perform the construction work at the Kaiser facility, Laborers would promptly commence picketing the project. On November 5, 1975, Laborers began picketing the job- site. The picket signs stated that Reinhardt had breached its contract with the Laborers. The picket- ing continued until February 18, 1976, when it was terminated pursuant to an understanding with the Board's Regional Office. B. The Work in Dispute The work in dispute consists of all laborers' work performed by Reinhardt Construction Company at the Highway 54 East, Mexico, Missouri, facility of Kaiser Refractories, a Division of Kaiser Aluminum and Chemical Corporation. C. The Contentions of the Parties Kaiser contends that the language of the letter of intent in its contract with the Brick & Clay Workers does not require an assignment of the work in dis- pute to plant services employees represented by that Union. Kaiser views the letter as merely requiring it to discuss and review layoffs which result from the contracting out of work customarily performed by Brick & Clay Workers-the determination of what work and employee assignments are possible in such a situation is left to the Employer's discretion. The Employer also takes the position that the letter of intent does not require assignment of the work in dispute to employees represented by the Brick & Clay Workers because the layoff of the 30 produc- tion employees predated the contracting out and did not result from such action, but rather from an ante- cedent production cutback. Finally, the Employer contends that the work in dispute is not work of a type customarily performed by brick and clay work- ers. The Brick & Clay Workers contends that the work in dispute has been properly and voluntarily assigned to employees it represents. It relies upon its current contract which includes the letter of intent adden- dum and upon the 1971 arbitration award of similar work to its members. Laborers contends that the Employer's initial as- signment of the work in dispute was a forced assign- ment made only because the Brick & Clay Workers was threatening to strike to compel the assignment- an action which would have stopped all production of brick by the Employer. Laborers further contends that factors such as efficiency and economy; area, industry, and company practice; and relative work skills establish that the work in dispute should be assigned to employees which it represents. D. Applicability of the Statute Before the Board may proceed to a determination 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, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. The parties have submitted no evidence that they have adjusted or agreed upon any method for the adjustment of the present work dispute.3 As noted earlier, the 1971 arbitration award favorable to the Brick & Clay Workers is not dispositive of the pres- ent work dispute since Laborers was not a party to that arbitration proceeding. The evidence shows that Laborers gave written no- tice on November 3, 1975, to Reinhardt Construction Company that it would picket the latter's construc- tion work at the Employer's facility because of Reinhardt's failure and refusal to request and utilize laborers represented by it. Laborers commenced picketing on November 5, 1975. The picketing con- tinued until February 18, 1976, with signs stating that 7 In fact, they have stipulated that neither the Employer nor the Brick & Clay Workers is bound by any voluntary method of adjustment of junsdic- tional disputes, and in particular is not bound by the Impartial Jurisdic- tional Disputes Board for the settlement of jurisdictional disputes CONSTRUCTION & GENERAL LABORERS' LOCAL 957 91 Reinhardt Construction Company had breached its contract with the Laborers. We find that the foregoing provides reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated and that the case is properly before the Board for determination under Section 10(k) of the Act.4 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 factors.5 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.' The following factors are relevant in making a determination of the dispute before us. 1. Certifications and collective-bargaining agreements There is no Board certification determining the bargaining representative for the employees assigned to perform the work in dispute. Nor is there any evi- dence that any labor organization involved herein has been certified by the Board as collective-bargain- ing representative for a unit of Kaiser's employees. The letter of intent addendum to the Employer's current contract with the Brick & Clay Workers has been previously set forth. By its terms, that adden- dum requires that the Employer discuss and review with the Union any plans to contract out work cus- tomarily performed by its members. The final deci- sion still rests with the Employer. Thus, the Brick & Clay Workers contract with Kaiser does not, by its terms, require assignment of the work in dispute to the plant services employees represented by that la- bor organization.' There is no collective-bargaining agreement be- tween Kaiser and the Laborers. However, Reinhardt, through an association of contractors, has a current agreement with the Laborers which requires Rein- hardt to obtain all laborers it employs through the Laborers exclusive referral system. While the absence of certifications renders that 4 See Local 1228, International Brotherhood of Electrical Workers, AFL- CIO (Providence Journal Company), 205 NLRB 1022 (1973) 5 N L R B v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U S 573 (1961) 6 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 (1962) 7 Thus, we find it unnecessary to decide whether the letter of intent was also inapplicable in the present situation because the layoff of the brick and clay workers may have resulted from a production cutback due to adverse business conditions factor neutral, we find that the respective collective- bargaining agreements involved favor an award to employees represented by Laborers. 2. Company, area, and industry practice The president of Reinhardt Construction Compa- ny and Kaiser's industrial relations superintendent testified that Kaiser has, without exception, used Reinhardt to perform construction work at its Mexi- co, Missouri, facility for the past several years, and that during such time Reinhardt has used laborers represented by Laborers, and not Kaiser's plant serv- ices employees represented by the Brick & Clay Workers. The same officials testified that no plant in the refractory industry in the Mexico, Missouri, area follows the practice of simultaneously using "`mixed crews"; that is, crews comprised of employees repre- sented by Laborers and plant services employees or other repair and maintenance personnel represented by Brick & Clay Workers to perform the disputed work. In addition, the business manager of the East- ern Missouri Laborers District Council testified that he was responsible for negotiating and administering all building construction contracts in the Mexico, Missouri, area, but was not aware of any projects where laborers had been excluded from performing the construction work in favor of maintenance-type personnel such as Kaiser's employees represented by the Brick & Clay Workers. Thus, the past practice of Kaiser and the industry in the area favors an award of the disputed work to the employees represented by the Laborers. 3. Skills and aptitudes The record shows that Kaiser's plant services de- partment employees, represented by the Brick & Clay Workers, are not sufficiently skilled to perform the regular and customary duties of construction la- borers.' Supervisor Oser of the plant services depart- ment stated that the plant services employees are en- gaged primarily in plant janitorial services. Significantly, two plant services employees assigned by Kaiser to assist Reinhardt admitted that they were not qualified to be construction laborers. One of these employees claimed only to be able to perform some of the duties of construction laborers, while the other admitted "he did not feel" qualified to do the 8 The Employer's industrial relations superintendent, Gahoto, testified that the construction work assigned to the plant services department em- ployees "[w]as work that we were willing to try to assign to our employees to see whether or not they were able to perform the work and whether or not it was practical to operate in that condition " He further testified that the Employer had determined that "from an economical standpoint, it is disas- trous and from an operations standpoint, it is impossible" 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work of a construction laborer at all. The record re- flects further that, while some duties ordinarily per- formed by construction laborers represented by La- borers have been performed by Kaiser's plant services employees in recent years, such duties were usually performed in connection with maintenance and repair work within the plant, as distinguished from major construction work performed by general contractors. Thus, the factor of skills and aptitudes favors an award of the disputed work to employees represented by the Laborers. 4. Efficiency employees, whereas under ordinary circumstances Reinhardt's laborers required only general direction to maintain a current construction schedule. Finally, as noted previously, Kaiser's plant services employ- ees admit that they are not qualified to perform the regular duties of construction laborers. Thus, the brick and clay workers' performance of construction work (as contrasted with janitorial or repair and maintenance work) at the Mexico, Missouri, facility is essentially less efficient and economical than the performance of the same work by construction labor- ers represented by the Laborers. Accordingly, the factor of efficiency of operations favors an award of the disputed work to employees represented by the Laborers. Kaiser officials, as well as those of Reinhardt, tes- tified that Reinhardt's utilization of construction la- borers represented by Laborers has led to the expedi- tious completion of numerous construction projects for Kaiser in the past. Kaiser's industrial relations superintendent, Gallo- to, testified that efficiency of construction operations at the Mexico, Missouri, facility is greatly increased when laborers rather than its own plant services em- ployees perform the construction work. He attributed the less efficient performance of the plant services employees during the period they were assigned to assist Reinhardt's construction laborers to their gen- eral lack of familiarity with the ordinary manner in which Reinhardt's many classifications of building trades employees performed their duties, particularly with regard to the normal progression and direction of the construction project. Galioto also attributed this lack of efficiency by the plant services employees to an unwillingness on their part to strictly conform their break and lunch periods and their starting and quitting times to those observed by employees of Reinhardt. This problem required repeated confer- ences to eliminate the ensuing "down time" which resulted in connection with the vital construction schedule. A Reinhardt supervisor testified without contra- diction that the use of the Employer's plant services employees had caused a project slowdown of about 25 percent. This diminished efficiency and slowed construction pace was attributed to the need to pro- vide detailed supervision for Kaiser's plant services Conclusion Having considered all pertinent factors, including the parties' contracts; the company, area, and indus- try practice; the relative skills and aptitudes required to competently and expeditiously complete the work in dispute; and efficiency in the various construction operations, we conclude that employees represented by Laborers are entitled to perform the work in dis- pute. In making this determination, we are awarding the disputed work to employees of Reinhardt Con- struction Company who are represented by Con- struction and General Laborers' Local 957, Laborers' International Union of North America, AFL-CIO, 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees of Reinhardt Construction Company who currently are represented by Construction and General Laborers' Local 957, Laborers' International Union of North America, AFL-CIO, are entitled to perform all laborers' work at the Highway 54 East, Mexico, Missouri, facility of Kaiser Refractories, a Division of Kaiser Aluminum and Chemical Corpo- ration.