Laborers Local 1(Del Construction)

LABORERS LOCAL I (DEL CONSTRUCTION) Laborers International Union of North America, Local No. 1, AFL-CIO and DEL Construction Company. ' Case 13-CD-384 31 August 1987 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS JOHANSEN, BABSON, AND STEPHENS The charge in this 10(k) proceeding was filed 10 April 1987 by the Employer, DEL Construction Company. The charge alleges that Laborers Inter- national Union of North America, Local No. 1, AFL-CIO (Laborers Local 1) violated Section 8(b)(4)(D) of the National Labor Relations Act by threatening to engage in proscribed activity if the Employer assigned the operation of the brick fork- lift truck to members of International Union of Op- erating Engineers, Local 150, AFL-CIO (Local 150). The hearing was held 30 April 1987 before Hearing Officer Radine Legum. Thereafter, the Employer, Laborers Local 1, and Local 150 each filed a brief. 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. 1. JURISDICTION The Employer, DEL Construction Company, is an Illinois corporation with a principal place of business in Downers Grove, Illinois, and is en- gaged in the business of masonry construction at various construction sites in Illinois. In the last cal- endar year, the Employer purchased and received at its Illinois construction sites products, goods, and materials valued in excess of $50,000 from Illi- nois enterprises that received such products, goods, and materials directly from points located outside the State of Illinois. During the same period of time the Employer received gross revenues in excess of $250,000. The parties 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 Laborers and Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. ' The name of the Company appears as amended at the hearing Inter- national Union of Operating Engineers, Local 150, AFL-CIO was the party in interest in this proceeding II. THE DISPUTE 593 A. Background and Facts of Dispute The Employer is signatory to collective-bargain- ing agreements with Operating Engineers Local 150 and Laborers Local 1.2 The former agreement was signed by the parties in April 1984 and covers brick forklift work. The latter agreement was signed by the parties on 16 April 1987 and similarly provides that brick forklift work will be assigned to members of the Laborers. About 10 March 1987 Giovannetti, the president of the Employer, received a letter from the Labor- ers' District Council president, Ernest Kumerow. The letter, which was sent to "All Signatory Em- ployers," stated, in pertinent part, that any reas- signment of the operation of brick forklift trucks "to any other Union is a breach of the Laborers' Contract and will result in an immediate strike and picketing by the Laborers to preserve the work ju- risdiction."3 Giovannetti testified that he did not respond to the letter because a "Laborer," Garrett, was operating the Lull brick forklift truck at the time he received the letter. On 3 April 1987 the Employer, as masonry sub- contractor at the Lane Plaza Shopping Center con- struction site in Chicago,' Illinois, began its job at the site ;of constructing exterior masonry bearing walls and 2 days of interior work. At the time of the hearing, the Employer employed eight individ- uals at the Lane Plaza' site. Operation of the Lull brick forklift truck, the work allegedly in dispute, involves transporting scaffolding, mortar, brick, and other materials from the staging area to the wall structure under construction and lifting mate- rials onto the scaffolding. At the time of the hear- ing, a "laborer," Garrett, was operating the brick forklift truck. Local 150's business agent, Paddock, testified that on 3 April 1987 he went to the Lane Plaza Shopping Center construction site and asked Gar- rett, who was then operating the brick forklift truck, if he knew that, the machine he was operat- ing should have been assigned to a member of Local 150. Garrett stated that he knew that the work belonged to the employees represented by 2 Peter Giovannetti is president and majority stockholder of the Em- ployer Giovannetti testified that he owned G L Construction Co , a masonry contractor, equally with George and Gus Lolos until late 1980 or early 1981 Giovannetti and the Lolos, thereafter, had a "parting of the ways" and Giovannetti operated G L for a short time by himself G L was dissolved and DEL was incorporated immediately thereafter. Giovannetti testified that he was under the impression that DEL had had an agreement with the Laborers and had made fringe benefit payments to the Laborers on behalf of employees since 1981 a The parties stipulated that Kumerow acted as an agent on behalf of Laborers Local 1 when he wrote the March letter 285 NLRB No. 75 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Operating Engineers and that he felt he should be an "Operator."4 Paddock also spoke with two other individuals, Jackson and Amwar, who were assisting in the operation of the forklift truck. Amwar informed Paddock that he had always be- lieved that anyone assisting in machinery operation should be represented by Local 150. During a 3 April 1987 telephone conversation with Giovannetti, Paddock stated that the brick forklift truck work should have been assigned to a member of the Operating Engineers, but Paddock did not threaten a strike, picketing, or any job action during this conversation or any subsequent conversations with Giovannetti. Giovannetti told Paddock about the letter he had received from the Laborers and stated that Paddock should speak with the Laborers' attorney.5 On 6 April 1987 Paddock returned to the Lane Plaza site to take photographs and talk with em- ployees, but he did not mention union representa- tion at the time. During subsequent trips to the job- site, Paddock asked whether Garrett, Amwar, and Jackson would execute authorization cards for Local 150, and all three employees signed authori- zation cards. On 6 April 1987 Giovannetti informed the La- borers' business agent, Dilacova, that Paddock was attempting to recruit employees who were mem- bers of the Laborers. Dilacova stated that if Gio- vannetti reassigned the work to Local 150, the La- borers would picket. On 21 April 1987 the Operating Engineers filed a petition, supported by three authorization cards, for a representation election. According to Paddock's testimony, Local 150 does not object to the oper- ation of the brick forklift truck by the Employer's current employees, but claims that these employees should be represented by Local 150. Giovannetti testified that he wanted the same employees to continue to perform the work allegedly in dispute, but that he preferred that the operator of the brick forklift truck be represented by the Laborers. B. The Work in Dispute The disputed work involves the operation of the brick forklift truck at the Lane Plaza Shopping Center construction site in Chicago, Illinois. 4 Prior to working for the Employer, Garrett worked as an operating engineer on a hiring hall referral permit issued by Local 150 5 About 3 April 1987 Giovannetti contacted the Laborers' attorney who advised Giovanneth to make a written assignment of the work to the members of the Laborers On 5 April 1987 Giovanneth wrote a letter assigning the brick forklift truck operation at Lane Plaza to the members of the Laborers because he preferred to have the laborers continue to perform such work C. The Contentions of the Parties Laborers Local I claims that its contract with the Employer does not provide for any method of voluntary resolution of jurisdictional disputes and that it has threatened to strike and -picket if the Employer reassigns the brick forklift work to anyone other than a member of the Laborers. La- borers Local 1 further claims that the Board should award the work that is in dispute to the Laborers because of the factors of, e.g., employer preference and past practice, economy and efficiency of oper- ations, area and industry practice, and relative skills and safety. Laborers Local 1 additionally argues that Board precedent supports this result and that in view of the "continuing and recurring" nature of the dispute the award should be applicable to all projects of the Employer within the jurisdiction of the Laborers' District Council of Chicago and Vi- cinity. Operating Engineers Local 150 contends that the notice of hearing should be quashed.6 In support of its motion to quash, Local 150 argues that the present controversy is not a jurisdictional dispute within the meaning of Section 10(k) of the Act. The dispute is not between two groups of employ- ees over which is entitled to perform certain work, but rather between two unions seeking to represent the same current employees of the Employer. Thus, according to Local 150 the present contro- versy involves a question concerning representation rather than a 10(k) jurisdictional dispute. Operating Engineers further claims that the pur- ported threat to strike and picket by the Laborers was a sham to invoke the Board's authority to de- termine the dispute, and is inadequate to provide reasonable cause to believe that Section 8(b)(4)(D) has been violated. If, however, the Board should find that a bona fide jurisdictional dispute exists, Operating Engineers, contends that the work should be awarded to those employees seeking representa- tion by Local 150. The Employer "does not want" members of the Operating Engineers to operate the brick forklift truck because, inter alia, they would perform no work 25 to 50 percent of the time because the brick forklift truck is the Employer's only onsite machine and Local 150's collective-bargaining agreement "prohibits" its members from doing any- thing but operating machines. The Employer re- quests that the work be awarded to the Laborers on all the jobs the Employer performs in the coun- ties of DuPage and Cook, Illinois, because the Em- 6 At the 30 April 1987 hearing, Local 150 moved to quash the notice of hearing The hearing officer referred the motion to quash the notice of hearing to the Board for ruling LABORERS LOCAL I (DEL CONSTRUCTION) player believes that this "inter-union dispute will escalate into a more dangerous situation " unless the Board resolves the matter generally. 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. On the record before us, we are not satis- fied that there is reasonable cause to believe that any such violation has occurred. Although Laborers Local I and the Employer have framed the issues in terms of a work assign- ment dispute, it is evident that the dispute is not over the assignment of work to one group of em- ployees rather than another within the meaning of Section 8(b)(4)(D). Rather, as argued by Local 150, the dispute involves the question of which Union will represent the employees who are currently op- erating the brick forklift truck . None of the parties has raised any objection to the operation of the brick forklift truck by the Employer's current em- ployees. On the contrary, the Employer would like to retain its current employees, but prefers that they be represented by the Laborers . The Laborers and Operating Engineers dispute only which Union should represent the employees currently operating the brick forklift truck at the Lane Plaza construc- tion site. 595 It is well established that a dispute within the meaning of Section 8(b)(4)(D) requires a choice be- tween two competing groups.' In this regard, the Board has stated:8 There must, in short, be either an attempt to take a work assignment away from another group, or to obtain the assignment rather than have it given to the other group. A demand for recognition as bargaining repre- sentative for employees doing a particular job, or in a particular department, does not to the slightest degree connote a demand for the as- signment of work to particular employees rather than to others. Thus, in light of the foregoing, we conclude that the dispute here does not concern the assignment of work to one group of employees rather than an- other within the meaning of Section 8(b)(4)(D). Accordingly, as this matter is not a dispute within the meaning of Section 10(k), we shall quash the notice of hearing. ORDER It is ordered that the notice of hearing issued in this case is quashed. ' Food & Commercial Workers Local 1222 (FedMart Stores), 262 NLRB 817 (1982), Teamsters Local 222 (Jelco, Inc.), 206 NLRB 809 (1973) 8 FedMart Stores, supra, citing Communications Workers (Mountain States Telephone), 118 NLRB 1104, 1107-1108 (1957)