Carpenters Local 790 (C. Iber & Sons)

299 312 NLRB No. 52 CARPENTERS LOCAL 790 (C. IBER & SONS) 1 Except where otherwise specified, all dates are in 1993. 2 Although the Carpenters agrees that Sleister’s notes establish that an assignment of the work was made at this meeting, the Laborers asserts that the notes reflect what was discussed but do not constitute an assignment of work. Northwest Illinois and Eastern Iowa District Coun- cil of Carpenters and Carpenters Local No. 790 and C. Iber & Sons, Inc. and Local Union No. 109, Laborers’ International Union of North America. Case 33–CD–359 September 22, 1993 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH The charge in this Section 10(k) proceeding was filed on March 1, 1993,1 by the Employer, C. Iber & Sons, Inc., alleging that the Respondent, Carpenters Local 790, had violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to as- sign certain work to employees it represents rather than to employees represented by Laborers Local 109. The hearing was held on April 1, 2, and 26 before Hearing Officer Debra L. Stefanik. The National Labor Relations Board affirms the hearing officer’s rulings, finding them free from preju- dicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The Employer, a Delaware corporation, is a general contractor engaged in commercial and industrial con- struction with an office and principal place of business in East Peoria, Illinois. The parties stipulated that in the 12 months preceding the hearing, a representative period, the Employer received gross revenues in excess of $50,000 for performance of services directly to cus- tomers outside the State of Illinois and purchased and received services or materials in excess of $50,000 di- rectly from outside the State of Illinois. The parties further 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 Carpenters Local 790 and Laborers Local 109 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is the general contractor in charge of the construction of an addition to the Faraday Hall building at Northern Illinois University in DeKalb, Illi- nois. One facet of the construction involves the erec- tion of shoring to make forms into which concrete is poured. The shoring erection work in issue includes as- sembling tubular metal sills, shoes, horsing, and sad- dles, but does not include beams, joists, and plywood decking. The Employer has collective-bargaining agreements with both Carpenters and Laborers that ap- pear to cover such shoring erection, which were exe- cuted in July or August 1992, prior to the commence- ment of the Faraday Hall project. On December 29, 1992, the Employer held a 2- to 3-hour meeting attended by representatives of the Car- penters, the Laborers, and the Northern Illinois Con- tractors Association. Mike Sleister, the Employer’s vice president, and Michael Childers, the field super- intendent at the project since December 21, 1992, were present. Also present was Glenn Turpoff, the executive director of the contractors association. Sleister testified that the meeting was conducted ‘‘to resolve the rum- blings about this shoring system,’’ i.e., which Union’s members should perform the work. Prior to this meet- ing the shoring work had been assigned to employees represented by the Carpenters. Sleister stated that prior to that meeting, despite the grumbling, neither Union had threatened to picket or strike or take other action related to performance of the shoring erection work. In the course of the meeting, each of the Unions claimed to have previously performed such work in the DeKalb area and claimed the work for employees it represents. Sleister testified that at the end of the meeting, he as- signed the shoring erection work to the Carpenters, as evidenced by notes he took at the meeting which indi- cate in pertinent part that ‘‘Carpenters install deck forming & false work,’’ and that his decision was based on the Employer’s past practice.2 Notwithstanding his presence at the meeting, Childers thereafter used employees represented by both Unions to perform shoring erection work. Childers tes- tified that he did so in an effort to promote labor har- mony at the jobsite and that shoring erection proceeded in this manner until January 29. Thus, on the 5 days during this period that shoring erection was performed, Childers himself erected shoring with the help of a sin- gle laborer for 3 days, and assigned the work to two carpenters and two laborers on 2 other days. On Janu- ary 29, according to Childers, Carpenters Steward Dave Woods grieved the use of laborers to perform the work, stating, ‘‘the practice of the laborers putting the shoring together in any way, shape or form can’t be tolerated, and it—and it is solely the work of the car- penters.’’ In response, Childers retrieved a copy of Sleister’s notes from the December 29 meeting and showed it to Laborers Steward David Taylor. Childers explained to Taylor that he planned to ‘‘stick strictly’’ to Sleister’s assignment of the work to the employees represented by the Carpenters and said that ‘‘from this day hence . . . the carpenters will 100% build the 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Tending refers to the practice of ‘‘handling’’ or bringing the un- assembled shoring forms to carpenters. 4 No party contends that there are any applicable joint union board determinations that would preclude or otherwise affect the Board’s Determination of Dispute. 5 The Laborers challenges the effectiveness of the collective-bar- gaining agreement between the Employer and the Carpenters inas- much as an unsigned, undated copy of the purported agreement was submitted into evidence. The Laborers failed to refute, however, the assertions of the Carpenters and the Employer that neither could find a signed dated copy, and that the copy entered into evidence was in fact the applicable agreement governing their relationship. shoring.’’ Childers added that carpenters would install the shoring and laborers would ‘‘tend’’ the carpenters.3 On February 9, the Laborers grieved the Employer’s sole use of carpenters to perform the work. James Schmitt, the Employer’s president, subsequently con- tacted Carpenters District Council Business Agent Tom Sakalauski to propose that composite crews of car- penters and laborers perform the work. The parties stipulated that on February 26, Sakalauski told Schmitt that he would not agree to the use of composite crews and threatened to picket if the assignment of the work was changed to permit laborers to share in the erection of the shoring. B. Work in Dispute The disputed work involves the erection of sill, shoe, horsing, and saddle shoring forms at the Faraday Hall building addition jobsite at Northern Illinois Uni- versity. C. Contentions of the Parties The Employer contends that its assignment of the work in dispute to the employees represented by the Carpenters was proper and was based on 30-year past practice and its need for efficiency and safety. The Carpenters contends that the six factors on which the Board generally relies in resolving jurisdictional dis- putes establish that the work was properly assigned to the employees it represents. The Laborers contends that the Employer’s past practice at this jobsite and others, area practice, and relative skills and efficiency support an award of the work in dispute to employees it represents. The parties stipulated that there is no agreed-on method of resolving this dispute and that neither of the Unions has disclaimed the work. D. Applicability of the Statute The record establishes that the disputed shoring erection work was assigned solely to the employees represented by the Carpenters on January 29 after the Carpenters grieved the Employer’s use of composite crews of carpenters and laborers to perform the work. Following the Laborers’ grievance of the January 29 assignment of the disputed work to the Carpenters, the Carpenters threatened to picket the Employer if the as- signment was changed. 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.4 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 this dispute. 1. Certifications and collective-bargaining agreements The record does not indicate that either the Car- penters or the Laborers have been certified by the Board regarding the employees they represent. Article 1, section 3 of the Carpenters contract, entitled ‘‘Occu- pation Scope,’’ refers to ‘‘the building, erecting and dismantling of all scaffolding and staging; the building and construction of all derricks; the making of mortor [sic] boards, boxes, and trestles; putting in needle uprights; all shoring of building, razing and moving buildings.’’5 Article XXIII of the Laborers contract, entitled ‘‘Jurisdiction of Work,’’ refers to ‘‘the build- ing of scaffolding and staging for masons and plas- ters,’’ ‘‘the shoring, underpinning and raising of all structures,’’ and ‘‘the assembling and dismantling of all jacks and sectional scaffolding, including elevator construction and running of slip form jacks.’’ As both contracts arguably cover the work in dispute, this fac- tor equally supports an award of the shoring erection work to employees represented by each Union. 2. Company preference and past practice In December 1992, shoring work at the Faraday Hall project commenced and the work was initially assigned to carpenters. On December 29, 1992, after attempting to resolve the Union’s ‘‘rumblings’’ about the disputed work by bringing the parties together, the Employer assigned the shoring erection work to employees rep- resented by the Carpenters. Although Field Super- intendent Childers was authorized, at least apparently, 301 CARPENTERS LOCAL 790 (C. IBER & SONS) 6 It appears that the other projects involved the use of wooden shoring. 7 The Laborers contends that this factor supports an award of the work to a composite crew of laborers and carpenters. 8 Rodney Carlson, a district superintendent for CeCo, a construc- tion contractor whose general practice is to use composite crews to perform shoring erection, testified that he told Sleister that it would be more economical for the Employer to use a composite crew be- cause laborers’ hourly wages are lower than the hourly wages of car- penters. The Board, however, does not assess economy on the basis of competing employees’ wage scales. to accomplish the work as he saw fit and chose to use composite crews of carpenters and laborers, he ulti- mately reassigned the work to carpenters and cited the December 29 assignment as his basis after Carpenters Steward Wood grieved the performance of any of the shoring erection work by laborers. Although the Employer’s initial assignment of the work to carpenters is entitled to great weight as a re- flection of its uncoerced preference, that weight is less- ened slightly by the Employer’s own disregard of the assignment on the next 5 days that shoring erection work was performed. Further, whatever weight may be accorded to the Employer’s return to the initial assign- ment of the disputed work to carpenters, it too is somewhat lessened by the fact that the reversion was the result of the Carpenters’ act—albeit lawful—of grieving the use of composite crews on January 29. Notwithstanding the Employer’s wavering with respect to the actual performance of the work, its position in this 10(k) proceeding consistently has been that em- ployees represented by the Carpenters should be awarded the work. Hence, considering the Employer’s initial assignment of the work and its position in this proceeding, we find that Employer preference favors an award of the disputed work to the employees rep- resented by the Carpenters. Sleister cited numerous instances of the Employer’s assignment of shoring erection work solely to car- penters at its construction projects in Illinois over the last 33 years. Five of these jobs entailed its use of tu- bular steel shoring similar to that used at the Faraday Hall site.6 The Laborers does not offer substantial evi- dence bearing on the Employer’s past practice except to note that it used composite crews at the sites in issue. Accordingly, the evidence concerning the Em- ployer’s past practice with regard to the erection of similar shoring favors an award of the disputed work to employees represented by the Carpenters. 3. Area and industry practice The testimony presented by the parties indicates a varied area and industry practice, with some contrac- tors assigning work of the type in dispute to car- penters, other contractors assigning the work in dispute to laborers, and still other contractors assigning such work to composite crews.7 Moreover, the testimony of Carpenters Business Agent Sakalauski and Laborers Steward Taylor concerning the presence of laborers at the Northern Illinois University Music Building jobsite and whether they performed shoring erection work is in conflict and thus cannot resolve the issue. Therefore, area and industry practice does not favor an award of the work to one group of employees over the other. 4. Relative skills The Carpenters presented evidence that its journey- man program includes mandatory detailed and intricate training concerning the measuring, leveling, and bal- ancing of the shoring forms used in the type of work disputed herein. The Laborers indicated that it offers training in shoring erection. Neither Union presented evidence, however, that carpenters or laborers em- ployed at the Faraday Hall jobsite had undergone such training. Further, notwithstanding the Carpenters’ rel- atively complex description of the skills required, par- ticularly for leveling shoring, the record establishes that laborers performed a significant portion of the work with no complaints or other indications that the quality of their work was wanting or lower than that of carpenters who performed the work. Accordingly, this factor does not favor an award to employees rep- resented by either Union. 5. Economy and efficiency The Employer and the Carpenters assert that it is more efficient to have carpenters perform the work in dispute because they are more experienced. The Labor- ers contend that the use of composite crews to perform shoring erection is the most economical and efficient method because it avoids idling segments of the work force while waiting for other segments to finish a task.8 However, there is no evidence that laborers were idled at the Faraday Hall construction site while wait- ing for carpenters or any other craft to finish a task. Thus, the factors of economy and efficiency do not favor an award of the disputed work to one union over the other. Conclusions After considering all the relevant factors, we con- clude that employees represented by Carpenters Local 790 are entitled to perform the work in dispute. We reach this conclusion relying on the Employer’s pref- erence and past practice. In making this determination, we are awarding the work to employees represented by Carpenters Local 790, not to that Union or its mem- bers. The determination is limited to the controversy that gave rise to this proceeding. 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. Employees of C. Iber & Sons, Inc. represented by Carpenters Local 790 are entitled to perform the erec- tion of tubular metal shoring, which includes sills, shoes, horsing, and saddles, at the Faraday Hall build- ing addition construction site at Northern Illinois Uni- versity, DeKalb, Illinois.