Laborers Local 121 (Meissner & Wurst/Marshall Construction)

492 325 NLRB No. 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Although neither MWM nor Scott entered an appearance at the hearing, the amounts establishing the Board’s jurisdiction over these employers were set out in the testimony of witness Kevin Casali, a project manager for MWM. Laborers International Union of North America, Local No. 121 and Plumbers, Steamfitters and Marine Fitters Local No. 290, affiliated with the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL– CIO and Meissner & Wurst/Marshall Con- struction, Inc., a Joint Venture and Scott Co. of California, Inc. Case 36–CD–206 March 23, 1998 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME The charge in this Section 10(k) proceeding was filed on January 6, 1997, by Plumbers, Steamfitters and Marine Fitters Local No. 290, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL–CIO (Local 290), alleging that the Respondent, Laborers International Union of North America, Local No. 121 (Local 121), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Meissner & Wurst/Marshall Construction Inc., a Joint Venture (MWM), to assign certain work to em- ployees represented by Local 121 rather than to em- ployees represented by Local 290. The hearing was held on February 20, 1997, before Hearing Officer Jef- frey E. Jacobs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION MWM is a joint venture formed by Meissner & Wurst, an engineering firm, and Marshall Contractors, a construction firm, to manage the construction of Hyundai Corporation’s silicone wafer manufacturing facility in Eugene, Oregon. MWM has its principal place of business in Eugene, Oregon. Since its creation in March 1996, MWM had gross revenue in excess of $1 million and purchased and received at the Hyundai construction site in Eugene, Oregon, goods and serv- ices valued in excess of $50,000 from suppliers located outside the State of Oregon. Scott Co. of California (Scott) is a subcontractor of MWM at the Hyundai construction site and performs plumbing, piping, vent- ing, and HVAC construction. Scott’s principal place of business is in California. As a subcontractor at the Hyundai construction site in 1996, Scott received reve- nue from MWM in excess of $1 million and purchased and received at the Hyundai construction site in Eu- gene, Oregon, goods and material valued in excess of $50,000 from suppliers located outside the State of Or- egon. We find, and the parties do not dispute, that MWM and Scott are engaged in commerce within the meaning of Section 2(6) and (7) of the Act.1 Further, the parties stipulate, and we find, that Local 121 and Local 290 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute As the general contractor, MWM is responsible for managing the construction of three buildings at Hyundai’s site in Eugene, Oregon. The principal build- ing under construction is the fabrication facility, also known as the ‘‘fab,’’ in which silicone chips will be manufactured for use in computers. After completion of the fab, approximately one-third of the structure will be maintained as a ‘‘clean room,’’ a carefully mon- itored and controlled environment essential to the pro- duction of silicone chips. In order to ultimately achieve clean room status upon completion, the fab must meet specific standards of cleanliness at various intervals during its construction. In December 1996, after the floor, four walls, and most of the roof were in place, MWM announced that the fab must now meet a clean- liness level designated Protocol 1, which essentially called for the structure to be ‘‘broom clean’’ on a daily basis. Broom clean status, however, was initially not easy to achieve. Due to unusually heavy rains in the North- west in the later part of 1996, the fab had a good deal of standing water in it. In addition, there were piles of construction debris that needed to be removed from the building. Before the fab could achieve broom clean status, the water and debris had to be removed. On previous construction jobs requiring protocol cleaning, Gregory Hesse, a project manager for MWM, had employed crews represented by locals affiliated with the Plumbers and Pipefitters Union to clean con- struction sites. Based on his satisfactory past experi- ence, Hesse approached Scott, MWM’s plumbing sub- contractor, and inquired about Scott’s ability to provide up to 25 additional workers for approximately 3 weeks to perform the site cleanup work required before the fab could enter Protocol 1. Scott confirmed that it could make available a sufficient number of ‘‘mechani- cal laborers’’ represented by Local 290 to do the cleanup, and submitted a bid for the project to MWM. Scott and MWM then amended their original contract VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00492 Fmt 0610 Sfmt 0610 D:\NLRB\325.058 APPS10 PsN: APPS10 493 LABORERS LOCAL 121 (MEISSNER & WURST/MARSHALL CONSTRUCTION) 2 Counsel for Local 290 would not stipulate to this description of the disputed work at the hearing, but in its brief agrees that this de- scription is ‘‘generally accurate.’’ to include the performance of the short-term construc- tion cleanup. Scott’s mechanical laborers represented by Local 290 began the cleanup work at the Hyundai site on or about December 12, 1996. The cleanup work included water removal, or ‘‘dewatering,’’ which consisted of moving the water with large squeegees toward approxi- mately 30 pumps placed throughout the building; haul- ing remnant lumber and construction debris off the premises; and performing erosion control work, which consists of erecting and maintaining plastic silt fences and hay bales to prevent the erosion of the site’s hilly landscape during construction. Prior to the hiring of Scott’s mechanical laborers, la- borers represented by Local 121 were employed by several other subcontractors to perform a variety of tasks at the Hyundai facility, including general site cleanup, dewatering, and erosion control. At least three subcontractors at the Hyundai site entered into Labor- ers compliance agreements with Local 121, which in- corporate by reference a master agreement between the regional entities representing both the associated con- struction contractors and the laborers affiliates. On learning of the presence of Scott’s mechanical laborers at the Hyundai site, Wally Jensen, a represent- ative of Local 121, contacted Kevin Casali, a project manager for MWM, to discuss the situation. Jensen told Casali that Scott’s mechanical laborers were per- forming general cleanup work, dewatering, and erosion control previously performed by laborers represented by Local 121, and that the work should be exclusively assigned to Local 121’s laborers. Mr. Casali agreed to inform MWM’s onsite representatives that Scott’s me- chanical laborers were not to perform dewatering and erosion control, but that they would continue to per- form the short-term, general site cleanup to prepare for entering Protocol 1. On December 16, 1996, following the initial contact between Jensen and Casali, Lee Clinton, Local 121’s secretary-business manager, wrote to Casali to dispute the assignment of cleanup work, dewatering, and ero- sion control to Scott employees. In the letter, Jensen informed Casali that Local 121 ‘‘will take whatever steps are necessary and whatever economic action nec- essary to protect our laborers’ jurisdiction and work.’’ Jensen reiterated this point by declaring that if Casali failed to exclusively assign the work in dispute to la- borers represented by Local 121, ‘‘I will have no alter- native but to take whatever action is necessary.’’ On December 18, 1996, representatives of MWM and Local 121, including Hesse, Clinton, and Jensen, met to discuss the assignment of the disputed work. By the meeting’s end, MWM agreed to return the disputed work to laborers represented by Local 121. Scott’s me- chanical laborers were laid off on or about December 18, 1996. Within 3 weeks of that layoff, Local 290 filed a charge alleging that Local 121 had violated Section 8(b)(4)(D) of the Act. B. The Work in Dispute The disputed work involves general cleanup, erosion control, and dewatering work to bring the Hyundai construction site in Eugene, Oregon, up to protocol cleanliness levels.2 C. Contentions of the Parties Local 121 first contends that it did not threaten MWM in a manner that would give the Board reason- able cause to believe that Section 8(b)(4)(D) of the Act has been violated. Alternatively, Local 121 asserts that the work should be awarded to employees it represents based on (1) the Laborers master agreement, incor- porated by reference in compliance agreements Local 121 entered into with subcontractors at the Hyundai site; (2) past practice of the subcontractors at this con- struction site; and (3) the superior training and skills of the employees represented by Local 121. Local 290 asserts that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, and that the disputed work should be assigned to Scott employees represented by Local 290. D. Applicability of the Statute Before the Board may proceed with determining a dispute pursuant to Section 10(k) of the Act, two juris- dictional prerequisites must be met. First, the Board must find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Second, the Board must find that the parties have no agreed-on method for the voluntary adjustment of the dispute. These jurisdictional prerequisites have been met in this case. First, as noted above, Clinton wrote to Casali and informed him that Local 121 would ‘‘take what- ever steps are necessary and whatever economic ac- tions deemed necessary to protect our laborers’ juris- diction and work.’’ Given virtually identical language, the Board has found reasonable cause to believe that Section 8(b)(4)(D) was violated. Holt Cargo Systems, 309 NLRB 377, 378–379 (1992). We reject Local 121’s contention that the letter contains no threat be- cause it does not mention picketing or striking. We find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Second, the parties stipulated that they have not agreed on a meth- od to adjust this dispute voluntarily. Accordingly, we find that the Board has jurisdiction to resolve this dis- pute. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00493 Fmt 0610 Sfmt 0610 D:\NLRB\325.058 APPS10 PsN: APPS10 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402, 1410– 1411 (1962). The following factors are relevant in making the de- termination of this dispute. 1. Certifications and collective-bargaining agreements There is no evidence that the Board has certified ei- ther Local 290 or Local 121 as representatives of the employees involved in this case. Local 121 argues that language contained in a re- gional master agreement, incorporated by reference in local compliance agreements it entered into with var- ious subcontractors at the Hyundai site, governs the as- signment of the work in dispute. Local 121, however, has no contract with MWM. Nor does Local 290. Because neither union has a collective-bargaining agreement with MWM, the employer assigning the work in dispute in this case, we find that there is no collective-bargaining agreement that governs the work in dispute. We find that these factors do not favor an award of the disputed work to either labor organization. 2. Employer past practice Kevin Casali testified that during his prior employ- ment with Marshall Contractors, he typically employed composite crews representing several building trades to perform the cleanup work associated with protocol cleanliness levels. Gregory Hesse testified that during his prior employment with Meissner & Wurst, he em- ployed workers affiliated with the Plumbers and Pipe- fitters Union to perform similar work. MWM, as a joint venture, has never before overseen the construc- tion of a fabrication facility. Thus, we find that the factor of employer past practice does not favor an award to either group of employees. 3. Employer preference and assignment Kevin Casali and Gregory Hesse each testified that MWM prefers to assign the work in dispute to the Scott employees represented by Local 290. Further, when the construction project entered Protocol 1, MWM did, in fact, assign the work in dispute to Scott employees represented by Local 290. MWM reas- signed the disputed work to employees represented by Local 121 only after Local 121 threatened economic action against MWM if it did not assign the work to Local 121 exclusively. The Board does not accord weight to the employer’s assignment, or reassignment, of the disputed work that appears not to be representa- tive of a free and unencumbered choice. See Teamsters Local 158 (Holt Cargo), 293 NLRB 917, 921 (1989). Accordingly, the factors of employer preference and its initial uncoerced assignment favor an award of the dis- puted work to Scott employees represented by Local 290. 4. Area and industry practice Testimony on this subject differed depending on the nature of the construction project examined. The vary- ing evidence regarding area and industry practice is in- conclusive, and we find that an analysis of this factor does not favor an award of the work in dispute to ei- ther employee group. 5. Economy and efficiency of operations The record contains no evidence that the Board con- siders relevant to determining that the Employer would experience greater economy and efficiency of oper- ations by using one group of employees rather than an- other. 6. Relative skills and training Both parties concede that no special skills or train- ing are required to perform the work in dispute. Local 121 argues, however, that its longer experience per- forming the disputed work at this particular jobsite gives it an overall skill advantage, particularly with re- gard to safety issues. Given that employees represented by either party are equally capable of performing the work in dispute, we find that an analysis of this factor does not favor an award to either party. Conclusions After considering all the relevant factors, we con- clude that Scott employees represented by Local 290 are entitled to perform the work in dispute. We reach this conclusion relying on MWM’s preference and cur- rent assignment. Service Contractors, 321 NLRB 1168 (1996). In making this determination, we are awarding the disputed work to employees represented by Local 290, not to that union or to its members. This deter- mination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. 1. Employees of Scott Co. of California represented by Plumbers, Steamfitters and Marine Fitters Local No. 290, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00494 Fmt 0610 Sfmt 0610 D:\NLRB\325.058 APPS10 PsN: APPS10 495 LABORERS LOCAL 121 (MEISSNER & WURST/MARSHALL CONSTRUCTION) Pipefitting Industry of the United States and Canada, AFL–CIO are entitled to perform the general cleanup, erosion control, and dewatering work to bring the Hyundai construction site in Eugene, Oregon, up to protocol cleanliness levels. 2. Laborers International Union of North America, Local No. 121 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Meissner & Wurst/Marshall Construction Inc., a Joint Venture, to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Laborers Inter- national Union of North America, Local No. 121 shall notify the Regional Director for Region 36 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this deter- mination. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00495 Fmt 0610 Sfmt 0610 D:\NLRB\325.058 APPS10 PsN: APPS10