Laborers Local 464 (Terra Engineering)

11 302 NLRB No. 2 LABORERS LOCAL 464 (TERRA ENGINEERING) 1 All dates refer to 1990 unless otherwise indicated. 2 The Carpenters did not appear at the hearing nor submit a brief. 3 The Employer, by virtue of a letter of assent, is a party to the collective- bargaining agreement between Madison Employers Council and Laborers’ International Union of North America Local No. 464. The most recent agree- ment between the parties is effective by its terms from June 1, 1990, until May 31, 1993. 4 On August 21, 1990, the Milwaukee & Southeast Wisconsin District Coun- cil of Carpenters filed a grievance against Oscar Boldt Construction Company Continued Laborers International Union of North America Local 464 and Terra Engineering & Construc- tion Corporation and Milwaukee & Southeast Wisconsin District Council of Carpenters. Case 30–CD–133 March 11, 1991 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH The charge in this Section 10(k) proceeding was filed August 23, 1990,1 by the Employer, alleging that the Respondent Laborers International Union of North America Local 464 (Laborers) violated Section 8(b)(4)(D) of the National Labor Relations Act by en- gaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Milwaukee & Southeast Wisconsin District Council of Carpenters (Carpenters).2 The hearing was held De- cember 10, before Hearing Officer Rocky L. Coe. 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 The Employer, Terra Engineering & Construction Corporation, a Wisconsin corporation, is a construction firm with its principal office in Madison, Wisconsin. During the past calendar year, a representative period, it purchased and received goods, materials, products, and services valued in excess of $50,000 from suppli- ers located outside the State of Wisconsin. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Laborers is a labor organization within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer has a contract with Oscar Boldt Con- struction Company to perform the excavation, and the sheeting work that accompanies the excavation, for a new addition at St. Mary’s Hospital which is located in the city of Madison, Dane County, Wisconsin. The excavation and sheeting work was scheduled to be per- formed in July, August, and September 1990. The Em- ployer assigned the sheeting work to employees rep- resented by the Laborers, with whom it is a party to a collective-bargaining agreement.3 Sheeting normally is performed by a crew of ap- proximately five people: an equipment crane operator for handling the sheets; another operator for handling or running the piece of equipment that is used to in- stall the sheets; a foreman to help handle the sheets; and then normally two laborers that perform the func- tion of hooking the sheets up so that the crane can then pick them and set the sheets and lock them to- gether prior to driving. Each panel of the sheets is nor- mally anywhere from 18 inches to approximately 24 inches wide. They range in lengths from 20 to 60 feet. The sheets are used to hold the earth or soil back for an excavation. About 1 week after the sheeting work had begun, Greg Sefcik, business representative for the Carpenters, contacted the Employer’s president and chief executive officer, Gary Zimmerman, and asked why carpenters were not being used to install the sheeting. Zimmer- man responded that the sheeting work has always been assigned to laborers and that is who the Employer was using. Sefcik asked Zimmerman to reconsider the as- signment and requested a meeting. Prior to the meet- ing, however, Sefcik telephoned Zimmerman to ask him to reconsider and to assign the sheeting to car- penters. When Zimmerman told Sefcik that the sheet- ing work would not be reassigned, Sefcik replied, ‘‘Well, it doesn’t sound like you want to cooperate, and as a result, if you are not going to do that, then you don’t leave me any other choice but to . . . put up some type of picket on the job.’’ On August 17, a meeting was held in the Employ- er’s office with Sefcik and Ron Lemon, from the Mil- waukee area, representing the Carpenters, and Business Manager Robert Niebuhr and Field Representative Tom Fisher representing the Laborers. Lemon stated that in Milwaukee, the carpenters performed all the piledriving and sheeting type of work. Lemon also in- formed the group that the Carpenters Council had un- dergone restructuring and that Madison area Carpenters were no longer independent as they had been in the past; that Madison was now under the Milwaukee ju- risdiction, and ‘‘that is the way it was going to be in Madison.’’ Lemon stated that he had been personally involved in piledriving in the past, and as far as he was concerned that was carpenters’ work, and the car- penters should perform that work. The Carpenters’ rep- resentatives then indicated that they would be filing a subcontracting grievance against Oscar Boldt.4 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alleging that several provisions of the 1990–1993 Carpenters’ agreement had been violated. 5 Chairman Stephens, in agreeing that there are competing claims for the work, finds that the Carpenters’ threat to picket, made in furtherance of its claim, distinguished this case from Laborers Local 731 (Slattery Associates), 298 NLRB 78 (1990), in which he dissented on the ground that a union’s ef- fort to enforce a union signatory clause does not, without more, constitute a competing claim for work. According to Niebuhr’s testimony, he first became aware that the Carpenters filed a grievance against Oscar Boldt on August 22, following a conversation with Carpenters Agent Bill Bareau. Niebuhr stated that he immediately telephoned the Employer and asked for Gary Zimmerman, who was unavailable. Niebuhr’s call was returned by Scott Zimmerman, the Employer’s civil engineer and project manager. Niebuhr expressed his concerns regarding the Carpenters’ recent attempt to put pressure on the general contractor to reassign the sheeting work for the St. Mary’s Hospital project, and informed the Respondent that the Laborers ‘‘did not intend to give that jurisdiction up,’’ and if the sheeting work was reassigned to employees rep- resented by the Carpenters, ‘‘we would pull all our people [working for Terra on that project] and picket, or possibly both.’’ Scott Zimmerman indicated that he understood the Laborers’ position and that ended the conversation. B. Work in Dispute The disputed work is the sheeting of the excavation for an addition to St. Mary’s Hospital in Madison, Wisconsin. C. Contentions of the Parties The Employer states that the disputed work belongs to employees represented by the Laborers. The Labor- ers claims the disputed work and admits by affidavit and at the hearing that on August 22 it threatened eco- nomic action in the form of pulling its men off the job and subsequent picketing if the Employer reassigned the work in dispute to carpenters. The Carpenters, by letter dated December 7, asserted that the disputed sheeting work is really piledriving work which belongs to it. The Carpenters are pursuing an independent sub- contracting grievance against Oscar Boldt for assigning the disputed work to the Employer. D. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated and that the parties have not agreed on a method for the vol- untary adjustment of the dispute. Section 8(b)(4)(D) makes it an unfair labor practice to take coercive ac- tion with the object to ‘‘for[ce] or requir[e] any em- ployer to assign particular work to employees in a par- ticular labor organization or in a particular trade, craft, or class rather that to employees in another labor orga- nization or in another trade, craft, or class . . . .’’ In order to find reasonable cause to believe Section 8(b)(4)(D) has been violated, ‘‘there must be evidence that one group of employees has exerted improper pressure upon the Employer to compel it to assign cer- tain work to that group of employees rather than to an- other group which also seeks the work.’’ Auto Workers Local 957 (General Motors), 239 NLRB 365, 366 (1978). At the beginning of the dispute, employees rep- resented by the Laborers had been assigned to perform the work in dispute. The Carpenters insisted that the work belongs to employees whom it represents and in- formed the Employer that its members would picket the jobsite and file a formal grievance against Oscar Boldt if the disputed work was not assigned to its members. Accordingly, there are competing claims to disputed work between rival employee groups.5 In re- sponse to the Carpenters’ claim of the work in dispute, the record indicates that on August 22 the business manager for the Laborers threatened the Employer that if the sheeting work on the St. Mary’s Hospital project was reassigned to carpenters it would pull all its men from the project and subsequently picket the jobsite. There is no evidence that this threat was not genuine and therefore there is reasonable cause to believe that the Laborers used proscribed means to enforce its claim to the disputed work. There is no agreed-on method for voluntary resolution of the dispute to which all parties are involved. Based on our findings above, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-on method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. 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 (1962). The following factors are relevant in making the de- termination of the dispute. 13 LABORERS LOCAL 464 (TERRA ENGINEERING) 6 The municipal utility contractors or excavating contractors have used la- borers to perform all sheeting type of work. The Milwaukee Council of Car- penters recently assumed jurisdiction in Dane County and is attempting to change the area and industry practice. 1. Certification and collective-bargaining agreements There was no evidence presented that either labor organization has been certified by the Board as the col- lective-bargaining representative for any of the em- ployees involved. Accordingly, this factor is not help- ful in determining the dispute. The Employer has a collective-bargaining agreement with the Laborers. Their most recent contract expires May 31, 1993. The agreement specifically mentions the disputed work in the section on ‘‘Laborers’ Juris- dictional Work.’’ (Art. VII, sec. 2(a), p. 11): Excavations for building and all other construc- tion; digging of trenches, piers, foundations and holes; digging, lagging, sheeting, cribbing, bracing and propping of foundations, holes, caissons, cofferdams, dams, dikes and irrigation trenches, canals, and all handling, filling and placing of sandbags connected therewith. The Employer is not a signatory to an agreement with the Carpenters. Under the circumstances, we find that this factor fa- vors an award of the disputed work to the employees represented by the Laborers. 2. Employer preference and past practice The Employer prefers to use the employees rep- resented by the Laborers, and its past practice since the mid-1970s has been to use laborers to perform this type of sheeting work. We find that the factor of employer preference and past practice favors an award to employees represented by the Laborers. 3. Area practice According to the uncontradicted testimony of the Employer’s president and chief executive officer, Gary Zimmerman, and Robert Niebuhr, business manager for the Laborers, the other excavating contractors in the Madison, Dane County area who were contacted, reported that all sheeting work is assigned to and per- formed by laborers.6 Therefore, this factor favors an award of the disputed work to the employees rep- resented by the Laborers. 4. Economy and efficiency of operations We find, based on the testimony of Zimmerman and Niebuhr, that utilizing the employees represented by the Laborers is more economical because of the limited amount of sheeting work to be done. The Employer can use the trained laborer who is regularly at the job- site to perform other work functions rather than hire a carpenter for this sole operation. Accordingly, we conclude that the factors of econ- omy and efficiency of operations favor awarding the work to employees represented by the Laborers. Conclusions After considering all the relevant factors, we con- clude that employees represented by the Laborers Local 464 are entitled to perform the work in dispute. We reach this conclusion by relying on the factors of the Employer’s collective-bargaining agreement with the Laborers, the Employer’s preference and past prac- tice, area practice, and economy and efficiency of op- erations. In making this determination, we are awarding the work to the employees represented by the Laborers Local 464, not to that Union or its members. The de- termination 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. Employees of Terra Engineering & Construction Corporation represented by Laborers International Union of North America Local 464 are entitled to per- form the sheeting work at the St. Mary’s Hospital project.