L. E. Mcgraw Construction, Inc.

598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD L. E. McGraw Construction, Inc. and Laborers Union Local No. 1130, affiliated with Laborers International Union of North America, AFL- CIO and Carpenters Local Union No. 1235, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 32-CD-98 10 April 1987 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON The charge in this Section 10(k) proceeding was filed 20 August 1986 by the Employer, alleging that the Respondent, Laborers Union Local No. 1130, affiliated with Laborers International Union of North America, AFL-CIO (Laborers Union), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Carpenters' Local Union No. 1235, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpenters Union). The hearing was held 20 October 1986 before Hearing Officer David Dominguez.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Employer, a California corporation, with an office and place of business in Modesto, California, is engaged as a general contractor in the building and construction industry. It was undisputed and we fmd that during the past year, a representative period, the Employer purchased and received goods or services valued in excess of $50,000 di- rectly from suppliers located outside the State of California. It is undisputed and we fmd that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is un- disputed and we find that Laborers and Carpenters are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute In December 1985 the Employer entered into a contract to perform as general contractor over the construction of the Modesto Community Center Parking Garage. The Employer employs 12 car- penters to perform such duties as installing, 'assem- bling, setting, stripping, dismantling, and reusing concrete foundation forms. Apprentice carpenters size and pack timber and do general cleanup func- tions in addition to assisting journeymen carpenters with the foregoing duties. The present dispute arose in August 1986. Busi- ness agents of the Laborers Union approached Larry E. McGraw, the president of the L.E. McGraw 'Construction Company, and stated that a portion of the work being performed by- the car- penters on the Modesto Community Center Park- ing Garage Project was- laborers' work and de- manded that the work be assigned to its members. The work then being performed by the carpenters consisted of setting the forms into which the cement was poured, removing or "stripping" the forms which were designated to be moved to an- other location, and reinstalling the forms for the next cement pour. McGraw refused to assign the disputed work to the laborers. At that point, Rich- ard Crispin, who had identified himself as a busi- ness representative of the Laborers Union, stated that if the Employer was refusing to assign the dis- puted work to members of the Laborers Union that the Employer was "not leaving us much choice except to picket the job." The jobsite was picketed by the Laborers Union from 20 August through 9 September 1986, at which time a preliminary in- junction against the picketing was issued by the Federal district court in Fresno, California. One of the pickets, Amos Earl McElvanie, identified him- self as a member of the Laborers Union, stated that his Union's business agent knew he was picketing this jobsite, and further stated that the reason he was picketing was because he wanted the Employ- er to assign the disputed work to members of the Laborers Union. B. Work in Dispute The disputed work consists of the fabrication, as- sembly, and/or installation of the wood and/or metal concrete foundation forms at the Modesto Community Center Parking Garage, 1101 9th Street, Modesto, California.2 ' The Laborers Union and the Carpenters Union neither participated in the hearing nor filed posthearing briefs. 2 Since no objection was made by any of the parties involved in this dispute, we adopt the description of the work in dispute set forth in the Continued 283 NLRB No. 87 L. E. MCGRAW CONSTRUCTION C. Contentions of the Parties The Employer contends that the disputed work should be assigned to employees represented by the Carpenters Union, an intervenor in this case, be- cause the Carpenters Union is certified as the col- lective-bargaining representative of its employees and because there exists a current collective-bar- gaining agreement between the Carpenters Union and the Employer. The Employer further argues that each of the factors which the. Board considers in disputes of this nature weighs heavily in favor of such assignment to the employees represented,by the Carpenters Union. In addition, the Employer requests an order awarding similar work in like projects to employees represented by the Carpen- ters Union, including any and, all projects on which the Employer may now be working, or on which it may work, in any of the 46 counties covered by the collective-bargaining agreement to which it is signatory. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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 there is no agreed-upon method for the voluntary adjustment of the dispute. As noted above, in August 1986 business agents of the Laborers Union approached the Employer and demanded that the disputed work be assigned to its members. When the Employer refused to make such assignment, Richard Crispin, a business representative of the Laborers Union, threatened to picket the jobsite. Subsequently, the jobsite. was picketed by the Laborers Union from 20 August through 9 September 1986. One of, the pickets stated that he was picketing the jobsite because he wanted the Employer to assign the disputed work to the laborers and that his Union's business agents were aware of this conduct. Based on the forego- ing, and the record as a whole, we find that rea- sonable cause exists to believe that the Laborers Union violated Section 8(b)(4)(D) of the Act. There is no current agreed-upon method for the voluntary adjustment of, the dispute to which all parties are bound. Accordingly, this dispute is properly before the Board for determination. notice of hearing served on the parties. However, we note that the instal- lation of the forms by the carpenters comprises a continuous process and necessarily entails stripping the forms so that they may be reused. In addition to pouring the cement into the wooden forms, the cement masons may on occasion assist the carpenters in setting up the forms. There is no contention that any work performed by the cement masons is in dispute 599 E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 bal- ancing the factors' involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402. (1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements It is undisputed that the employees of the Em- ployer are represented either by the Carpenters Union or the Cement Masons Union, but' are not represented by the Laborers Union. It is, also undis- puted that the Carpenters Union has been certified as the, exclusive bargaining representative of the particular group of employees who are performing the disputed work. Moreover, it is undisputed that the carpenters are performing their work under a signed collective-bargaining agreement which for over 9-1/2 years has been interpreted by the parties thereto as covering the type of work which is in' dispute. The Laborers Union has, never been a party to a collective-bargaining agreement with the Employ- er, nor have any of its members ever been em-, ployed by the Employer. We find that the Employ- er's collective-bargaining agreement with the Car- penters Union encompasses the disputed work.. Ac- cordingly, we conclude that-the ,factors of certifica- tions and collective-bargaining agreements favor the Employer's assignment. 2. Company preference and past practice It is undisputed that the Employer has during the past 9-1/2 years used carpenters to perform the type of work in dispute. Furthermore, it is also un- contested that the Employer has never directly em- ployed any members of the Laborers Union to per- form the type of work in dispute or any other type of work. We therefore find that the Employer's past practice favors the assignment of the disputed work to employees represented by the Carpenters Union. At the hearing, the Employer, through` the testi- mony of its president, expressed its preference that the disputed work be awarded to its employees- represented by the Carpenters Union. While we do not afford controlling weight to this factor, we find 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, it tends to favor an award of the work in dis- pute to employees represented by Carpenters. 3. Area practice The undisputed testimony of the Employer indi- cates that it is a common practice of construction companies on similar types of construction projects in the area in the State of California to assign work similar to that in dispute here to carpenters and not laborers. 'We therefore find that this factor tends to favor an award of the work in dispute to employ- ees represented by the Carpenters Union. 4. Relative skills and safety The undisputed testimony of the Employer indi- cates that the disputed work requires the skills of a carpenter, and that these skills are not possessed by laborers. Specifically, the testimony establishes that the Employer has trained the carpenters employed by it to set and strip forms. In this regard, the Em- ployer testified that its carpenters have been em- ployed by it for some years and are experienced working together as a unified crew. The uncontra- dicted testimony,-of the Employer also indicates that skill is required in dismantling the forms be- cause 95 to 98 percent of them are reused. Additionally,- the Employer testified that safety is a factor it considers in assigning the work to em- ployees represented by the Carpenters Union be- cause the job requires the use of heavy tools which are typically not possessed by the members of the Laborers Union and which they are not authorized to use. ,We therefore find that the combined factors of relative skills and safety favor an award of the work in dispute to employees represented by Car- penters. '5. Economy and efficiency of operations The Employer presented undisputed evidence that an award of the work in dispute to employees represented by Carpenters Union will result in greater, flexibility in the utilization of its work force and in greater efficiency and economy of oper- ations. As noted above, employees represented by the Carpenters Union have experience performing the work, in dispute because in the past they have been assigned work similar to that in dispute. In addition, the disputed work is intermittent and when carpenters are not engaged in performing the disputed work, the Employer assigns related work to carpenters which it would be unable to assign to laborers. Accordingly, we find that the factor of economy and efficiency of operations favors an award of the disputed work to employees repre- sented by the Carpenters Union. 6. Job impact The Employer testified that if an award, of the disputed work is made to employees represented by the Laborers Union, the Employer will be forced to lay off four carpenters. Accordingly, we find that the factor of job impact favors the Em- ployer's assignment. Conclusions After considering all the relevant factors, we conclude that employees represented by Carpenters Local Union No. 1235, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work in dispute. We reach this conclusion relying on the facts that such an award is consistent with the Employer's current collective-bargaining agreement with the Carpen- ters Union; the employees represented by the Car- penters Union possess the requisite skills to perform such work and they can perform such work in a safe manner; such an award will result in greater economy and efficiency of operations and will not result in an adverse impact on jobs; the assignment is in accord with area practice; - and it is - consistent with the Employer's past practice and preference. In making this determination, we are awarding the work to employees represented by Carpenters Local Union No. 1235, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, not to that Union or its members. In consequence, we also find that Laborers Union ' Local No. ,1130, af- filiated with Laborers International Union of North America, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees it represents. The present deter- mination is limited to the particular controversy which gave rise to this proceeding.3 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of L. E. McGraw Construction, Inc., who are currently represented by Carpenters Local Union No. 1235, United 'Brotherhood of Carpenters and Joiners of America,- AFL-CIO,' are entitled to perform the fabrication, assembly, and/or installation of the wood and/or metal 'con- crete foundation forms at the Modesto Community 3 Since the facts do not demonstrate that the Laborers,Union has a proclivity to engage in further unlawful conduct in order to obtain work similar to that to dispute, we deny the Employer's request to issue an award encompassing the geographical area of the 46 counties covered by the collective-bargaining agreement to which it is signatory. L. E. MCGRAW CONSTRUCTION 601 Center Parking Garage at 1101 9th Street, Modes- to, California. 2. Laborers Union Local No. 1130, affiliated with Laborers International Union of North Amer- ica, AFL-CIO is not entitled by means proscribed by Section 8(bx4)(D) of the Act to force or require L.E. McGraw Construction, Inc. to assign the dis- puted work to employees represented by it. 3. :Within{ 10 days from this date, Laborers Union Local No. 1130, affiliated with Laborers Interna- tional Union of North America, AFL-CIO shall notify the Regional Director for Region 32 in writ- ing whether it will refrain from forcing the Em- ployer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsist- ent with this determination.