Carpenters Local 112 (Keeney Construction)

CARPENTERS LOCAL 112 (KEENEY CONSTRUCTION) United Brotherhood of Carpenters and Joiners of America, Union Local No 112, AFL-CIO and Keeney Construction Co, Inc and Laborers' International Union of North America, District Council of Laborers State of Montana, Local No 1334, AFL-CIO Case 19-CD-455 February 13, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed August 12, 1988 , by Keeney Construction Co, Inc (Keeney) alleging that the Respondent, United Brotherhood of Carpenters and Joiners of America, Union Local No 112, AFL-CIO (Car- penters Local 112) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Keeney to assign certain work to employees it rep- resents rather than to employees represented by Laborers' International Union of North America, District Council of Laborers State of Montana, Local 1334, AFL-CIO (Laborers Local 1334) The hearing was held September 7, 1988 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 Keeney, a Montana corporation, is engaged in a commercial concrete contracting business at its fa- cility in Missoula, Montana, where it annually de- rives revenues in excess of $500,000 and purchases goods valued in excess of $50,000 from suppliers located outside the State of Montana During the same period Keeney provided services in excess of $50,000 to customers within the State of Montana who themselves are engaged in interstate coin merce The evidence indicates, and we find, that Keeney is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act We find that Carpenters Local 112 and Laborers Local 1334 are labor organizations within the meaning of Section 2(5) of the Act i ' Carpenters Local 112 (Summit Valley) 202 NLRB 974 (1973) Labor ers Local 1334 (Western Sign) 281 NLRB 185 (1986) II THE DISPUTE 1041 A Background and Facts of Dispute Keeney is a subcontractor on the Port of Mon- tana Authority Hub Facility project at Silverbow, Montana Keeney's work consists of the installation of two mass reinforced concrete slabs at the project Since at least 1983, Keeney has assigned the work of constructing the wooden forms for the concrete slabs to a composite crew of employees represented by Laborers Local 1334 and cement masons Keeney has a collective bargaining agree- ment with Laborers Local 1344 It has no collec- tive-bargaining agreement with Carpenters Local 112 On August 3, 1988,2 Keeney General Manager Ronald Keeney was approached at the jobsite by Carpenters Local 112 Business Agent Paddy Den- nehy Dennehy told Keeney that the construction of the wooden forms for the concrete slabs was carpenters' work Keeney told Dennehy that for years Keeney had been performing this type of work all over the State with laborers and cement masons and that he did not see any reason to change that practice Dennehy replied, "Well, it's going to be carpenters on this job " That afternoon pickets from Carpenters Local 112 appeared at the job carrying signs indicating that Keeney has no contract with Carpenters Local 112 and is a "SCAB contractor " On August 5 Keeney and Dennehy attended a meeting at the Laborers' hall with Laborers Local 1334 Business Agent Larry Persenger Once again Dennehy asserted that the building of the forms should be assigned to em ployees represented by Carpenters Local 112, and asked Keeney to sign a Local 112 contract Keeney declined to sign a contract or change the assign- ment of the disputed work Pickets appeared at the jobsite off and on for the rest of August As of the hearing date, Keeney had not changed the assign- ment of the disputed work B Work in Dispute The disputed work involves the building of wooden forms for pouring concrete slabs at the Port of Montana Authority Hub Facility project located at Silverbow, Montana C Contentions of the Parties Keeney contends that Carpenters Local 112 vio- lated Section 8(b)(4)(D) of the Act by its August 3, 1988 demand for the disputed work and subsequent picketing Keeney further contends that it has a contract with Laborers Local 1334 and has as- 2 All dates are in 1988 292 NLRB No 117 1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD signed the disputed work in accordance with that contract Keeney argues that the disputed work should be awarded to employees represented by Laborers Local 1334 on the basis of Keeney's pref- erence and past practice, economy and efficiency, and relative skills and safety Neither Carpenters Local 112 nor Laborers Local 1334 appeared at the hearing or filed briefs D Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b)(4)(D) charge has arisen However, before the Board pro- ceeds with a determination of dispute, 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-on method for voluntary adjust ment of the dispute At the hearing Keeney General Manager Ronald Keeney testified that Carpenters Local 112 de- manded that the disputed work be reassigned and picketed Keeney's worksite in an attempt to force Keeney to assign the disputed work to employees it represents rather than to employees represented by Laborers Local 1334 Keeney's testimony is un disputed We, therefore, find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred Further, there exists no agreed method of volun tary adjustment of the dispute within the meaning of Section 10(k) of the Act Accordingly, we find tha' the dispute is properly before the Board for determination 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 judgement 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 No party claims that there are certifications ap- plicable to the work in dispute Keeney does not have a collective-bargaining agreement with Carpenters Local 112 Keeney does have a collective-bargaining agreement with Laborers Local 1334, it contains the classification of form setter and form stripper This factor of col lective-bargaining agreements favors finding that employees represented by Laborers Local 1334 are entitled to perform the disputed work 2 Company preference and past practice Ronald Keeney testified that since at least 1983 Keeney has assigned the disputed work to a com- posite crew consisting of employees represented by Laborers Local 1334 and cement masons Accord- ingly, this factor favors an award of the disputed work to employees represented by Laborers Local 1334 and cement masons 3 Area practice Ronald Keeney testified without contradiction that other companies in the area perform similar work with laborers and cement masons Accord- ingly, this factor favors an award of the disputed work to employees represented by Laborers Local 1334 and cement masons 4 Relative skills and safety Ronald Keeney testified without contradiction that there are no special safety considerations in volved in the performance of the disputed work, that he is satisfied with the skills demonstrated by employees represented by Laborers Local 1334 and cement masons, and that he is not familiar with the skill of employees represented by Carpenters Local 112 No testimony was presented at the hearing concerning the skills of employees represented by Carpenters Local 112 Accordingly, while the safety factor is not helpful to a determination, the factor of relative skills favors an award of the dis- puted work to a composite crew of laborers and cement masons 5 Economy and efficiency of operation Uncontradicted evidence reveals that if the dis- puted work were assigned to employees represent- ed by Carpenters Local 112, the composite crew of employees represented by Laborers Local 1334 and cement masons , which performs all the other work on the job, would remain idle while the disputed work is being completed Accordingly, this factor favors an award of the disputed work to employees represented by Laborers Local 1334 and cement masons Conclusions After considering all the relevant factors, we conclude that a composite crew consisting of em- ployees represented by Laborers Local 1334 and cement masons are entitled to perform the disputed CARPENTERS LOCAL 112 (KEENEY CONSTRUCTION) work We reach this conclusion relying on the fac- tors of collective-bargaming agreements, employer preference and past practice, area practice, econo- my and efficiency of operation, and relative skills In making this determination, we are awarding the work to employees represented by Laborers Local 1334 and cement masons, and not to that Union or its members The determination is limited to the controversy that gave rise to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 A composite crew of employees of Keeney Construction Co, Inc, consisting of employees represented by Laborers' International Union of North America, District Council of Laborers State of Montana, Local No 1334, AFL-CIO, and 1043 cement masons, are entitled to perform the building of wooden forms for pouring concrete slabs at the Port of Montana Authority Hub Facility project at Silverbow, Montana 2 United Brotherhood of Carpenters and Joiners of America, Union Local No 112, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Keeney Construction Co, Inc to assign the disputed work to employees represented by it 3 Within 10 days from this date, United Brother- hood of Carpenters and Joiners of America, Union Local No 112, AFL-CIO shall notify the Regional Director for Region 19 in writing whether it will refrain from forcing the Employer, by means pro- scribed by Section 8(b)(4)(D), to assign the disput- ed work in a manner inconsistent with this determi- nation