Laborers International Union Local 264

DF CISIONS OF NATIONA. LABOR RELATIONS BOARD Laborers International Union of North America, AFL-CIO, Local Union No. 2641 and Arrow- head Building Materials and Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers ocal No. 541, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 17-CD-264 November 13, 1980 I)ECISI()N AND DETERMINATION OF DISPUTE 13 CIAIRNIMAN FANNING ANI) MHIEMBERS JENKINS ANI) PItNI I O This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Arrowhead Building Materi- als, hereinafter called the Employer, alleging that l aborers International Union of North America, AFL-CIO, Local Union No. 264, herein called the Laborers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by it rather than to employees represented by Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers Local No. 541, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, herein called the Teamsters. Pursuant to notice, a hearing was held before Hearing Officer Mary Cracraft on June 20 and July 10, 1980.2 All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer filed a brief which has been duly considered. 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 rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board makes the following findings: I. THEi! BUSINISS 01 OFHI EM'I OYIR The parties stipulated, and we find, that the Em- ployer is a Delaware corporation with offices lo- cated in Kansas City, Kansas, where it is engaged in supplying materials to the building and construe- ' The rlanlCe f this IJrliiill appcal J1 a llcnded til hee hearing 2 All dates h i ereii ire ill 198(, unles~s itColCr is t idicztted tion industry. The parties further stipulated, and we find. that the Employer annually purchases goods and materials valued in excess of 5().00() directly from sources located outside the State of Kansas. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert ju- risdiction herein. 11. T111L I ABOR OR(,ANIZAT'IONS INVOI VII) The parties stipulated, and we find, that the lIa- borers and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. Ill. TiL I)SPU'iL 1F A. Background und d ucts oj the Disputc The Employer is a supplier of drywall materials to the construction industry and serves subcontrac- tors or contractors on various construction projects in and around Kansas City, Kansas, and Kansas City, Missouri Its employees do not install or erect the wallboard, or move it about the jobsite once it has been delivered and placed. Rather, they only deliver wallboard and related supplies to construc- tion sites when requested by the contractor. In most cases, contractors will place an order with the Employer on the same day it is needed. Conse- quently, the Employer finds it essential to have em- ployees on its premises who are ready and able to fill the orders of its customers. Employees of the Employer engage in yardwork and in delivery work as drivers or helpers. When employees are assigned to make a delivery, two employees are usually sent with each truck. One employee drives and operates any power equip- ment needed to complete delivery, while the other employee assists. However, the Employer does not have separate classifications for drivers and helpers, and employees may be assigned to perform either function during a delivery. As a condition of delivery, contractors generally will require that drywall materials be "stocked" or "scattered" in various amounts and at various places around a jobsite. Typically, the driver will maneuver the Employer's loaded vehicle to a loca- tion as close as possible to the final resting point for the material. Then, with the use of a boom, which is a mechanical device mounted on the truck used for lifting and moving bundles of wallboard, and power jacks, the driver makes the "first drop" of the material onto the ground, a dolly, or onto the floor of a partially constructed structure. If the material must be moved from the location of the "first drop," the driver and helper guide the dolly 253 NLRB No. 37 288 LABORFRS INTERNATIONAI, UNION I.()LCAL. 264 or carry the board to the location of the "second drop." On November 9, 1979, pursuant to a Stipulation for Certification Upon Consent Election, the em- ployees of the Employer voted 10 for and 3 against representation by the Teamsters. On April 14, 1980, the Board certified the Teamsters as the ex- clusive representative of all full-time and regular part-time drivers, helpers, and yardmen employed by the Employer.3 Some time in May, two employees of the Em- ployer, Mike Barbarich and Bill Roberts, were en- gaged in delivering sheetrock and soundboard to a Cable Vision construction site in Kansas City, Mis- souri. As the two employees had almost completed removing the sheetrock from their truck, prepara- tory to carrying the sheetrock to the locations specified by the construction superintendent, they were approached by Laborers Business Agent Co- lumbus Sumpter, who asked to see their union cards and then informed them that they would have to quit unloading since both employees were not members of a Laborers local. After a telephone call to the Employer's office, during which Sump- ter reiterated his position, the employees reloaded the sheetrock and returned with it to the Employ- er's yard.4 A few days after this incident, the Employer at- tempted to complete the delivery of sheetrock to the Cable Vision site. The Laborers business agent, William Stapleton, stopped the two delivery em- ployees, Kirk Hahner and Mike Hill, and told them that if they tried to unload the sheetrock he had a banner in his car that he would put on the job. After Stapleton spoke on the telephone with Paul Haunschild, a supervisor for the Employer, Hahner : Subsequently, the Teamsters filed a charge in Case 17-CA-9707 in which it alleged that the Employer unlawfully refused Itl hargain with it The Employer therein admitted its refusal to bargain. hut contested the validily of the eamster, certification. The Regional Director for Region 17 issued a complaint in this case on June 10. and on July 10. upon mollion b counsel filr the General Counsel the Board issued an order transferring the proceeding t the Board and a Notice T Sholu Cause Thereafter. in a Decision and Order issued Noember 12. 1980, the Board found no merit n the Employcr's challenge to the Teamsters certi- fication, and accordingl) ordered the Employer to bargain wilh the Teamsters .4rrom,heud Building Materal,. 253 NlRB No 32 (1 9 80) On July 14. the Employer filed ith the Board a Motion To Revoke Certification in the representaiion case, Case 17-RC 8892, which under- lies the ahoe-described case The Employer contenlded therein that the Teamsters certification should he revoked because the Teamsters dis- claimer in the instant case, discussed n/fru, demonstrates that Inion's dis- interest in representing a number of employees of the Employer On July 17. the Board referred the Employer's motion to the Regional Director fir ruling On July 28, the Acting Regional Director denied the Employ- er's Motion To RevoKke Certification The mploy r filed wuith the Board a request for review: of the Acting Regional Direclor's denial of its molion, hich suas denied b hy e Board by telegraphic order dated No- vember 4, 1980 Howev er, arharich who held Iabhorers card. was permitted to de- liver he soundhoard since Iho, panels sesre light enough for arbarich lo carry ithou aistanc and Hill were instructed to return to the yard with the sheetrock, which they did. Sometime in late May or early June, the Em- ployer attempted to fill an order for sheetrock at the Bannister Mall construction site in Kansas City, Missouri. As the Employer's employees began re- moving the bundles of sheetrock from its flatbed truck, Laborers Agent Sumpter asked Haunschild, who was present at the Bannister Mall site, wheth- er the two employees unloading the trucks were members of the Laborers. When Haunschild stated that they were not, Sumpter expressed his displeas- ure about the lack of Laborers members available to move the sheetrock from the "first drop" at the truck to the specified delivery location. Sumpter stated that if employees represented by the Labor- ers were not used to carry the sheetrock to its des- tination he might shut down Hall-Missouri, the sub- contractor to which the sheetrock was delivered. To forestall any delay, the president of Hall-Mis- souri, Bill Hall, offered to provide one of his em- ployees, a Laborers member, to assist in delivery, but the Employer completed the delivery using its own employees who held Laborers cards. B. The Work in Dispute The work in dispute is described in the notice of hearing as "the distribution of materials on jobsites after the materials have been removed from the Employer's vehicles;" more particularly, the dis- puted work consists of the transportation of shee- trock or other drywall materials, either by hand- carrying or through the use of a dolly or handcart, from the point at which such materials have been removed from the Employer's truck (the "first drop") to the locations designated for delivery by the contractor or subcontractor purchasing the ma- terial (the "second drop"). C. Contentions of the Parties The Laborers and Teamsters moved that the notice of hearing be quashed on the grounds that there is no jurisdictional dispute between them. They contend that employees represented by La- borers are entitled to the disputed work because it and the Teamsters have had an agreement since 1947, signed by their respective international unions, awarding the work in dispute to employees represented by the Laborers. Moreover. the Team- sters disclaims the work in dispute. The Employer argues that the motion to quash should be denied, as a jurisdictional dispute exists notwithstanding the 1947 Laborers-Teamsters agreement and the Teamsters' disclaimer. The Em- ployer contends that the Unions' evidence in sup- port of their motion is controverted by the Em- 299 I)ECISIONS OF NATIONAL L.ABOR RELATIONS BOARD ployer's nonparticipation in the drafting of the 1947 agreement, and by its employees' expressed desire to continue to perform the disputed work. On the merits of the dispute, the Employer contends its employees should continue to perform the disputed work based on the Employer's preference and past practice. economy and efficiency of operations, and the impact on the present work force. 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 and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. It is uncontested that on three occasions in May and June, agents of the Laborers advised the Em- ployer that its employees would not be permitted to enter the construction jobsite to unload shee- trock unless they could produce Laborers cards, and that on at least two occasions these agents threatened to create a work stoppage at the jobsite if the Employer attempted to complete delivery without using employees represented by the Labor- ers. This threat clearly constitutes a threat of seri- ous economic harm, and is coupled with the stated aim of forcing the Employer to assign particular work to members of the Laborers rather than to employees of the Employer, represented by the Teamsters, to whom the work had been assigned. Accordingly, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. Moreover, we find no merit in the Teamsters' and Laborers' claim that no dispute exists because the Teamsters has disclaimed the work. In this regard, we note that the employees represented by the Teamsters, on whose behalf the Teamsters has purportedly executed the disclaimer, have clearly demonstrated their desire to continue to perform the disputed work.5 Therefore, we accord no weight to the disclaimer filed by the Teamsters. 6 We find further that at the time of the dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. As noted above, in their motion to quash, the Unions contend that there is no jurisdictional dispute since Fvidetlnce in support of the enlployees' desire to continue to perform this work includes testimony by emplioyees at the hearing and a petition signed by all the employees in the unit, as well as the emplolyees' cntin- ued performance of the work during the pendency of his proceeding. " See Inte,raturional Bnotlherhoid of Electrical Worker. Lcaul No. 610 (L.atduu Ouidi'*r Sign Company. Inc). 225 NLRIn 321) (1976); (;enerul I anmterv Local 326, affiliated with International Brotherhoad of lIeuernit. (huuJi'ur, W'urehoulemen and Il/elpcrv .mericu (azor l.xprcs. Incor- poratedi 203 NI.RI 100)2 11973) the parties are bound by a 1947 agreement between the Internationals of the Teamsters and Laborers which provides that the disputed work is within the Laborers' jurisdiction. However, the Employer was not a party to that agreement, and there is no evidence that, by operation of a collective-bargain- ing agreement or otherwise, the Employer intended to be bound to that agreement. Therefore, we find that the agreement does not constitute an agreed- upon method for the voluntary adjustment of this dispute to which all parties are bound.7 Nor does the record show that there exists any other agreed- upon method for the voluntary adjustment of this dispute binding all the parties. Accordingly, we deny the joint motion to quash and find that this dispute is properly before the Board for determina- tion under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to relevant factors.8 The Board has held that its determination in a ju- risdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.9 The following factors are relevant in making the determination of the dispute before us: 1. Board certifications There are no orders or determinations of dispute by the Board awarding jurisdiction of the work in dispute to employees represented by either of the Unions involved in the present proceeding. On April 14, the Board certified the Teamsters as the exclusive representative of all the Employ- er's yardmen, drivers, and helpers, including, inter alia, all employees who have been assigned by the Employer to perform the disputed work. This is a factor favoring an award of the work in dispute to employees represented by the Teamsters."o 2. Collective-bargaining agreements The Teamsters and the Employer have not ex- ecuted a collective-bargaining agreement covering the employees involved in the instant dispute. In I Local 965. International Union of Operating Engineer. .41L-('10 (Iwinl-State Gang-Vaill Sruclures. Inc.). 249 NLRB 894 (19811) N.I.R.B R. . Radio d leleviiion Broadcart Engtneer U'nion. Local 1212. Inrernationul Brotherhood ofJ' Elrrricl Workers. A.-CIO [Colum- hiua Boadcaring Sysrem], 364 U.S. 573 (1961). " Internatmonal Axocurialn of Murachinrt. Lodge No. 1743. AFL-CIO (J. 4. Jones Co(nsructionl Company), 135 NLRH 14102 (1962). "' See nited ,l ocaiurion of Journemen ard Apprenrc ofj rhi Plumbing rrd 'ipfitring Indu trv of the United Slrati and Canuda. Plumbers Lxocal 55. A/I-CIO (Midwet Prcnirerred Corporation). 184 NI.RB '0)1. 904 (1970). L.AB()RERS INTERNATI()NAI UNION, LO.()CAl 264 1975, the Employer signed a "participation agree- ment" with the Laborers, by which it agreed to be bound to the collective-bargaining agreement then in effect between the Builders Association of Mis- souri and Locals 264, 555. and 1290 of the Western Missouri and Kansas District Council of the Labor- ers' International Union of North America. This agreement included language delineating the La- borers' work jurisdiction. The record does not demonstrate that the Employer at any time evi- denced a desire to terminate this agreement. How- ever, it appears that the Laborers provided no rep- resentation for any employees of the Employer, T' and the Employer's contact with the Laborers prior to the instant proceeding was limited to pay- ments into various Laborers benefit funds on behalf of its employees who were members of the Labor- ers. It also appears that the Employer informed the Laborers that it would cease making these pay- ments after the Teamsters was certified to repre- sent the employees of the Employer. The record reflects that the Laborers raised no objections to the Employer's decision to discontinue these pay- ments. Therefore, the existence of the "participa- tion agreement" and the parties' conduct pursuant to it does not demonstrate that the jurisdictional provisions of the Laborers' area agreement govern this dispute. Accordingly, we find that this factor is of no value in determining the dispute before us. 3. Employer practice and preference The Employer has consistently assigned the dis- puted work to its employees now represented by the Teamsters, and is satisfied with and maintains a preference for this assignment. This factor favors an award of the disputed work to employees repre- sented by the Teamsters. 4. Area practice The Employer presented evidence that its prac- tice with regard to assignment of the disputed work is similar to that of other drywall suppliers in the area. However, James Hutton, director of the Builders Association of Missouri, in testimony elic- ited by the Laborers, asserted that, as reflected in the Laborers area agreement, area practice is to assign the disputed work to employees represented by the Laborers. Accordingly, this factor does not favor assignment of the work to either group of employees. " The I aorcr,. id n(] rill llict't l or liltr .It' pirltlpaltc im til' cc- iln pr'eedllng h 1 hihl th' I tallclrlr' usc iinrtll It rLcprt c tl Atlt Fmpl<ycr ' crnpl occ v 5. Skills and efficiency The Employer contends that its employees rep- resented by the Teamsters possess (1) the skills re- quired to perform the disputed work, including fa- miliarity with mechanical hoisting and moving de- vices including boom trucks, mechanized dollies, and power jacks: (2) adequate physical strength and health necessary to perform the required lift- ing, as determined by a preemployment physical examination; and (3) knowledge of construction site operations necessary to prevent damage to custom- er facilities and to prevent injury to fellow wNork- ers. As set forth above, the work in dispute consists of the transportation of sheetrock or other drywall materials, either by hand-carrying or through the use of a dolly or handcart, from the point of the "first drop" to other locations on the jobsite. The work is primarily physical labor. It does not re- quire the operation of any mechanical devices, except the use of a mechanized dolly at certain job- sites. There is no evidence that employees repre- sented by the Laborers would be physically unable to perform the disputed work, that they are unfa- miliar with the equipment used in performing the work, or that they lack knowledge of construction jobsite operations. Accordingly, we are of the opinion that employees represented by either Union are equally skilled in performing the work in dispute. 6. Economy and efficiency of operation The record indicates that assignment of the dis- puted work to employees represented by aborers will adversely affect the economy and efficiency of the Employer's operations. The Employer testified, without contradiction, that 80 to 90 percent of its deliveries require that materials be distributed or "scattered" to locations beyond the point of the "first drop." At present, the Employer normally as- signs two employees-a driver and a helper-for each delivery. Because the Employer must respond expeditiously to customers' requests for supplies, its practice is to assign two employees who are availa- ble at the time the order is placed to deliver the order, and designates one as a driver and the other as a helper. After the driver has, through the use of a boom or other mechanical device and with the assistance of the helper, removed the dryxwall from the Employer's truck to the ground or a dolly, the driver and the helper transport the drywall to its destination. Should an assignment be made t(i em- ployees represented by the aborers, the Employer would be required to dispatch a three-member crew, consisting of one teamster anli tr o laborers, 291 DECISIONS OF NATIONAI LABOR RELATIONS BOARD to make deliveries. While the laborers could assist the teamster in removing the material from the truck, the teamster would be prohibited from assist- ing the two laborers in transporting the material further. Moreover, the Employer would be unable to dispatch its crew with an order unless the requi- site members of the two Unions were available. Therefore, requiring a "mixed" crew of teamsters and laborers would result in increased costs and in- efficiency in the Employer's operation. According- ly, we find that this factor favors an award to em- ployees represented by the Teamsters. 7. Job impact Should the disputed work be assigned to employ- ees represented by the Laborers, the Employer would be required to lay off a substantial part of its existing work force which presently performs helper duties. This is a factor favoring assignment of the disputed work to employees represented by the Teamsters. Conclusion Upon the record as whole, and after full consid- eration of all relevant factors, we conclude that employees represented by the Teamsters are enti- tled to perform the work in dispute. We reach this conclusion relying on the Board's certification, the Employer's assignment and preference, economy and efficiency of operation, and job impact. In making this determination, we are awarding the work in question to employees represented by the Teamsters, but not to that Union or its members. The present determination is limited to the particu- lar controversy which gave rise to this proceeding. 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees employed by Arrowhead Building Materials who are represented by Building Materi- als, Excavating, Heavy Haulers, Drivers, Warehou- semen and Helpers Local No. 541, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, are entitled to perform the work in dispute which con- sists of the distribution of materials on jobsites after the materials have been removed from the Employ- er's vehicles. 2. Laborers International Union of North Amer- ica, AFL-CIO, Local Union No. 264, is not enti- tled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Arrowhead Building Materials to assign any such disputed work to em- ployees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers Interna- tional Union of North America, AFL-CIO, Local Union No. 264, shall notify the Regional Director for Region 17, in writing, whether or not it will re- frain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsist- ent with the above determination. 292