Laborers Local 721 (Marshall & Sons)

LABORERS LOCAL 721 (MARSHALL & SONS) Construction and General Laborers Local 721, La- borers International Union of North America (J. L. Marshall & Sons, Inc.) and United Brotherhood of Carpenters and Joiners of America, Local 624. Case 1-CD-811 June 21, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON The charge in this Section 10(k) proceeding was filed July 17, 1987, by Carpenters Local 624, alleg- ing that the Respondent, Laborers Local 721, vio- lated Section 8(b)(4)(D) of the National Labor Re- lations Act by engaging in proscribed activity with an object of forcing the Employer, J. L. Marshall & Sons, Inc., to assign certain work to employees it represents rather than to employees represented by the Carpenters. The hearing was held September 11, 1987, before Hearing Officer John T. Downs.' 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, a Rhode Island corporation with its principal place of business in Pawtucket, Rhode Island, is engaged in the general construction busi- ness, principally in New England . During the con- struction of its Carver High School project in Carver, Massachusetts, the Employer purchased di- rectly from points outside Massachusetts building materials valued in excess of $50,000 . Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Carpenters and Laborers are signatories to collective-bargaining agreements with the Employ- er. We find that the Carpenters and the Laborers are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Work in Dispute The disputed work involves the distribution of wooden doors from a stockpile to their point of in- 1 By letter of September 9, 1987, Respondent Laborers declined to appear and participate in the hearing 285 stallation at the Employer's Carver High School jobsite. B. Background and Facts of the Dispute The Employer's Carver High School construc- tion job included the installation of approximately 270 wooden doors. The doors were delivered to the jobsite by tractor-trailer in May 1987.2 They were individually wrapped in polyethylene and stacked, in bundles of 40, on pallets. A forklift op- erator (represented by a Union not involed in this dispute) unloaded the doors3 and stockpiled them on the floor of the school gymnasium. In early July, Laborers' business manager Louis Palavanchi and steward Manuel Miranda visted the jobsite and demanded that Joseph Silveira Jr., the Employer's project superintendent, assign the work of transporting the doors to the Laborers-represent- ed employees. Silveira replied, "Well, we've al- ready discussed this. They' re going to be assigned to the Carpenters." After more discussion, and a telephone conversation between Palavanchi and Robert Niles, the Employer's general superintend- ent, Silveira, heard Palavanchi say to steward Mi- randa, "If the Carpenters are going to move it, you grab a hammer and damage any door they move." On a Friday in mid-July, Silveira instructed acting Carpenter Foremen David Delgrande to select two of his men to begin the job of moving the doors out of the gym. Delgrande went over the building plans with carpenters Clifford Leaf and Dale Anderson, and directed them to prepare a list showing each door's point of installation by match- ing the number on the door with the corresponding number on the floor plans. Shortly after Leaf and Anderson began preparing the list, they noticed that about 10 employees represented by the Labor- ers were sitting on the doors, preventing them from being moved. Delgrande reported the incident to Silveira. Sil- veira thereupon entered the gymnasium and ob- served some laborers sitting on the doors. He told Delgrande to assign the two carpenters to another job, and ordered the laborers to return to the other trades' work to which they had previously been as- signed. The following Monday, the Employer made a new composite work assignment to avoid a work stoppage or damage to the doors. The composite work assignment required that each door be car- ried by a laborer and carpenter working together. The carpenters assigned to carry doors with labor- 2 Unless noted otherwise, all dates are 1987 8 The disputed work description in the notice of hearing included "un- loading" of doors, however, at the hearing, the word "unloading" was deleted from the description 289 NLRB No. 43 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ers reported ill and ceased work for the day. They returned the next day and agreed to a modification of the composite work assignment under which two carpenters would carry one door and two la- borers would carry another door. The Carpenters' business representative testified that there is no agreed-on method for adjusting the dispute and so he filed the instant unfair labor prac- tice charge. C. Contentions of the Parties The Employer contends that the work of carry- ing prefinished doors properly belongs to carpen- ters who are responsible for their installation and who possess the skills to exercise greater care in moving and not damaging them. The Laborers states, in the September 9 letter which advised of its refusal to participate in this proceeding, that it has a contractual claim to the work in dispute, but that it acquiesced in the Em- ployer's composite assignment, unlike the Carpen- ters who engaged in a 2-day strike in protest. The Carpenters took the position at the hearing that the Employer's initial work assignment is sup- ported by its members' skills, abilities, and the ex- isting contract, and the area practice, economy, and efficiency of operations . The Carpenters con- tends that the Employer's subsequent composite work assignments should not be given any weight in the Board's determination because they stemmed from the Laborers' illegal threats and coercion. The Carpenters' brief to the Board urges an award to the carpenters which is broad enough to encompass the mutual geographic jurisdiction of both Unions. Its request for a broad award is based on evidence of the Laborers having engaged in identical conduct to obtain exactly the same work from employees represented by the Carpenters on a different employer's job. That conduct precipitated the filing of an 8(b)(4)(D) charge, which was with- drawn on the eve of the scheduled 10(k) hearing when the Laborers disclaimed the work . Subse- quently, the Laborers threatened a "sit down strike" to obtain the same work in the next phase of that project. D. Applicability of the Statute As noted, when the Laborers' business manager learned from the Employer of its decision to assign the disputed work to employees represented by the Carpenters, he openly instructed his steward to "grab a hammer and damage any door they moved." Thereafter, employees represented by the Laborers sat on the doors and prevented them from being moved. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there is no agreed method for the voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. 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 There is no evidence of either Union having been certified as bargaining representative of any of the Employer's employees. However, both Unions are signatories to contracts with the Em- ployer through the latter's membership in the Asso- ciated General Contractors of Massachusetts, Inc. The Carpenters' collective-bargaining agreement has been submitted in evidence; the Laborers, who did not participate in the proceeding, quoted in its letter of September 9 relevant portions of its col- lective-bargaining agreement. As the Employer notes in its brief, however, neither contract specifi- cally provides for work jurisdiction over this par- ticular work. Accordingly, we find that this factor favors neither group of employees. 2. Company preference and past practice The Employer prefers assigning the distribution of prefinished doors to carpenters who have the re- sponsibility for installing them and because they ex- ercise the skills and meet the Employer's expected standard of care.4 The testimony further reveals that the Employer's assignment is consistent with its practice over approximately the past 20 years. These factors support an award of the work to the Employer's employees represented by the Carpen- ters. 4 We find ment in the Employer's contention that the coerced compos- ite work assignment made by the Employer is immaterial to our determi- nation of the dispute LABORERS LOCAL 721 (MARSHALL & SONS) 3. Area and industry practice No evidence was adduced concerning the gener- al practice in the industry. The Carpenters' wit- nesses who testified specified 14 area projects in which the work in issue was performed by mem- bers of the Carpenters Union. We accordingly find that consideration of the factor of area practice favors Carpenters-represented employees. 4. Relative skills As indicated the disputed work consists merely of picking up prefinished and prewrapped doors and carrying them to the point of installation. The record shows that if the doors are not handled carefully, they can be dented or chipped, thus re- quiring costly repairs. Although the Employer as- serts that carpenters who install doors would be more likely to handle them with greater skill and care, no evidence was presented to show that the laborers cannot carefully transport the doors with- out causing them damage, or that they have inflict- ed damage in the past by performing such work. Accordingly, we find the evidence with respect to this factor to be speculative and inconclusive in ar- riving at our determination. 5. Economy and efficiency of operations Testimony at the hearing disclosed that the work of carrying a prefinished wooden door from the stockpile to point of installation can be done by the same carpenter who installs the door, that only one carpenter is necessary to perform both these func- tions, and that assistance by a laborer would be un- necessary and wasteful. There is no testimony to the contrary. Thus, it appears that economy and ef- ficiency is gained by having an employee with the skills to install a wooden door also transport that door from a stockpile to the point of installation. Accordingly, we find that these factors support the Employer's award to employees represented by the Carpenters. Conclusions After considering all the relevant factors, we conclude that employees represented by Carpenters Local 624 are entitled to perform the work in dis- pute. We reach this conclusion relying on the Em- ployer's preference and past practice, area practice, 287 and economy and efficiency of the Employer's op- erations . In making this determination, we are awarding the work to employees represented by Carpenters Local 624, not to that Union or its members. The determination is limited to the con- troversy that gave rise to this proceeding.5 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of J. L. Marshall & Sons, Inc., represented by United Brotherhood of Carpenters and Joiners of America, Local 624, are entitled to perform the work involving the distribution of wooden doors from a stockpile to their point of in- stallation at the Carver High School, Carver, Mas- sachusetts. 2. Construction and General Laborers Local 721, Laborers International Union of North America is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force J. L. Marshall & Sons, Inc. to assign the disputed work to employ- ees represented by it. 3. Within 10 days from this date, Construction and General Laborers Local 721, Laborers Interna- tional Union of North America shall notify the Re- gional Director for Region I in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the dis- puted work in a manner inconsistent with this de- termination. 5 We deny the Carpenters' request for a broad award to cover all jobs within its mutual geographical jurisdiction with the Laborers In Laborers Local 22 (AGC of Massachusetts), 283 NLRB 605, 608 (1987), the Board restated the standard for issuing such broad awards [T]here are two prerequisites for a broad , areawide award . First, there must be evidence that the disputed work has been a continuous source of controversy in the relevant geographic area and that simi- lar disputes may recur Second, there must be evidence demonstrat- ing that the charged party has a proclivity to engage in unlawful con- duct in order to obtain work similar to the work in dispute [Empha- sis in original, citations omitted ] Here, the evidence shows only that there was a single similar incident between the two Unions at a different employer 's jobsite, and that, after disclaiming the work in dispute, the Laborers made a threat to engage in conduct similar to that which it engaged in here when that construction project resumes There was no determination of dispute made in that case, however, and the Carpenters have presented no other basis to sup- port their request for a broad award In such circumstance, we find no warrant for granting a broad award.