Carpenters (C & W Fence)

CARPENTERS (C & W FENCE) 1091 Ventura County District Council of Carpenters, AFL-CIO and C & W Fence Co., Inc. and Op- erating Engineers Union Local 12, AFL-CIO and Sully-Miller Contracting Co.; Granite Con- struction Co.; Nye-Nelson, Parties in Interest. Case 31-CD-304 September 29, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charge in this Section 10(k) proceeding was filed on June 7, 1988, by C & W Fence Co., Inc. (C & W). The charge alleges that the Respondent, Ventura County District Council of Carpenters, AFL-CIO (Carpenters), violated Section 8(b)(4)(ii)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing C & W to continue to assign work to employees it represents rather than to employees represented by Operating Engineers Union Local 12, AFL-CIO (Operating Engineers). The hearing was held on July 22, 1988, before Hearing Officer Susan L. Seeck. 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 C & W, a California corporation, is engaged in the construction of fences in California. During the past calendar year, a representative period, C & W purchased goods and services valued in excess of $50,000 directly from points outside the State of California. We find that C & W is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. We also find that the Carpenters and Operating Engineers are labor organizations within the mean- ing of Section 2(5) of the Act. The Operating En- gineers was found to be a labor organization in sev- eral published Board cases,' and is listed in the U.S. Department of Labor's Register of Reporting Labor Organizations. As to the Carpenters, Busi- ness Agent Vertis McDonald testified that his Union, inter alia, represents employees, accepts em- ' Operating Engineers Local 12 (Cal Tram Rebuilders). 267 NLRB 272 (1983), Operating Engineers Local 12 (Associated Engineers), 270 NLRB 1172 (1984) ployees as members, and negotiates labor agree- ments on behalf of employees. II. THE DISPUTE A. Background and Facts of Dispute At all pertinent times, C & W was party to a col- lective-bargaining agreement with the Carpenters, which designates certain work, including the dig- ging of post holes for fence construction and the transportation and unloading of fencing materials by mechanical equipment, as being within the juris- diction of the Carpenters. The Engineers was party to a master labor agreement with the general con- tractors named below, which contained a clause prohibiting the general contractors from subcon- tracting any work encompassed in the agreement to a subcontractor who was not signatory to a col- lective-bargaining agreement with the Operating Engineers. C & W was hired at various times during 1988 by six different general contractors to perform fencing construction (including the above-described duties), and the disputed work was assigned to em- ployees represented by the Carpenters. (In the case of two of the general contractors, B & Sons and Advanco, C & W was included as their fencing subcontractor in their bids for particular public works projects, but each of these general contrac- tors told C & W that the Operating Engineers was claiming the work that C & W would be perform- ing. In fact, B & Sons informed C & W that it would not issue C & W a subcontract until the problem was resolved.) On April 5, 1988, the Operating Engineers filed a grievance against Sully-Miller contending that it was in violation of the subcontracting clause of the master labor agreement by contracting the disputed work to C & W. Similar grievances were subse- quently filed by the Operating Engineers against Granite Construction Company, Nye-Nelson, and Camino Contracting, which also had subcontracted such work to C & W. C & W's president, Robert Bennett, testified that Operating Engineers Business Agent Bob Miles contacted him both by telephone and in person on several occasions between March 1987 and May 1988, making claims for the disputed work at a number of jobsites. According to Bennett, Miles in- sisted that Bennett sign a contract with the Operat- ing Engineers; Bennett refused to do so. On May 2 and 31, 1988, the Carpenters informed C & W that it would picket at three of the jobsites if the work in dispute were reassigned to the Oper- ating Engineers. Bennett further testified that the Carpenters' picketing threat also encompassed the 296 NLRB No. 140 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other construction projects on which C & W was to perform fencing work. B. Work in Dispute The disputed work consists of the use of me- chanical equipment such as post hole diggers and forklifts to dig post holes and transport and unload fencing materials. C. Contentions of the Parties C & W and the Carpenters contend that the dis- puted work should be awarded to employees repre- sented by the Carpenters on the basis of the collec- tive-bargaining agreement between them, C & W's preference and past practice, economy and efficien- cy of operations, and relative skills and safety. The Operating Engineers, which was not present at the 10(k) hearing, submitted a letter to the Re- gional Director, which has been made part of the record here, setting forth its position that it does not claim that C & W should assign the disputed work to the employees it represents , but does claim that the general contractors breached the master labor agreement by subcontracting the disputed work to C & W. 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 the parties have not agreed on a method for the voluntary resolution of the dispute. As to the former, it is relevant that the Carpenters, on more than one occasion, has threatened to picket C & W if it reassigns the disputed work to employees represented by the Operating Engineers. Regarding the Operating Engineers, although it submitted a letter 2 days before the hearing stating, inter alia, that the Union "does not claim that C & W Fence Co. should assign any of its work to indi- viduals represented by [the Operating Engineers]," the evidence refutes any contention that it is not claiming the work. As indicated above, the Operat- ing Engineers initiated several contacts with C & W's president that were clearly claims to the dis- puted work. In addition, the Operating Engineers filed grievances against four of the general contrac- tors, protesting the subcontracting of what was al- legedly its work to C & W, and indicated that it would likely file grievances if the other two gener- al contractors failed to require that the fencing sub- contracts be performed with employees represented by the Operating Engineers . While the Operating Engineers' letter may represent a promise not to approach C & W directly in the future, it does not sufficiently disclaim its intent to file grievances, which the Board has held can constitute a compet- ing claim.2 The record indicates that there exists no agreed- on method for resolving this dispute. We therefore find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there is no agreed-on method of voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination.3 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. Certification and collective-bargaining agreements There is no evidence that the Board has certified either the Carpenters or the Operating Engineers as the collective-bargaining representative for any of the employees involved herein. As noted, the Carpenters has an agreement with C & W that designates "all work in the pre-fabrica- tion on or off the job site, handling, processing, in- stallation and finishing of all types of fences, in- cluding the digging of post holes and the driving of fence posts," as being within the jurisdiction of the Carpenters. C & W has no collective-bargaining agreement with the Operating Engineers. Although the master labor agreement to which the Operating Engineers is a party to was submit- ted as evidence at the hearing , that agreement is not germane to this dispute because C & W is not party to it. As we found in Laborers Local 22 (Perini Corp.), 283 NLRB 605 (1987), the company that ultimately controls and makes the job assign- 2 See, e.g, Laborers (O'Connell's Sons), 288 NLRB 53 fn. 2 (1988), Sheet Metal Workers Local 107 (Lathrop Co.), 276 NLRB 1200, 1202 (1985) See also Electrical Workers IBEW Local 3 (Western Electric), 141 NLRB 888, 894 (1963) (indirect efforts to secure subcontracted work can also constitute a claim for the work) "The last paragraph of the Operating Engineers ' letter requests that the 10(k) hearing notice be quashed The Regional Director did not act on this request, leaving that ruling for the Board We deny the request to quash because we find that there are active competing claims for the work in dispute. CARPENTERS (C & W FENCE) ment, in this case C & W, is deemed to be the "em- ployer" for purposes of deciding the work dispute. Accordingly, we find that the factor of collective- bargaining agreements favors an award of the dis- puted work to the employees represented by the Carpenters. 2. Company preference and past practice C & W has assigned the disputed work to em- ployees represented by the Carpenters and is satis- fied with their performance. Additionally, C & W has used Carpenters-represented employees to per- form the work for the last 8 years and prefers to continue to assign the work to them. We find that these factors favor an award of the work in dispute to the employees represented by the Carpenters. 3. Relative skills and safety C & W's president, Robert Bennett, testified that the carpenters are better able to operate the equip- ment involved than are the operating engineers, as the carpenters are familiar with its unique charac- teristics. Bennett further testified that this familiari- ty contributes to the enhancement of safety on the jobsite. On this record, we find that these factors tend to favor an award of the work in dispute to the employees represented by the Carpenters. 4. Economy and efficiency of operations C & W President Bennett also testified that be- cause the disputed work comprises only 4-1/2 per- cent of most jobs, it is much more efficient and ec- onomical to assign it to the carpenters , who also perform the other 95-1/2 percent of the jobs. He further testified that the operating engineers, who do not perform the other work, would remain idle during part of the workday. Accordingly, we find that these factors favor an award of the disputed work to the employees represented by the Carpen- ters. Conclusions After considering all the relevant factors, we conclude that employees represented by the Car- penters are entitled to perform the work in dispute. We reach this conclusion relying on the collective- bargaining agreement between C & W and the Car- penters, company preference and past practice, rel- ative skills and safety, and economy and efficiency of operations . In making this determination, we are awarding the work to employees represented by the Ventura County District Council of Carpen- ters, AFL-CIO, not to that union or its members. 1093 Scope of the Award The Carpenters has requested a broad work award, covering all work of the type in dispute performed by C & W on construction jobsites, wherever located, on which it obtains contracts. We find such an award inappropriate . Here, the labor organization-the Carpenters-which en- gaged in acts of 8(b)(4)(ii)(D) coercion in order to keep disputed work, is the organization that repre- sents the employees to whom we are awarding the work and to whom the Employer contemplates continuing to assign it. The other labor organiza- tion-the Operating Engineers-has not engaged in any acts of coercion, nor has it indicated any likeli- hood of doing so. In circumstances such as these, the Board has declined to give an areawide award. Iron Workers Local 433 (Crescent Corp.), 277 NLRB 670, 675 (1985); Electrical Workers IBEW Local 104 (Standard Sign), 248 NLRB 1144, 1147-1148 (1980).4 Accordingly, the award is limited to C & W's work on the six projects on which it had ob- tained contracts and for which there was evidence of competing claims for the work.5 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of C & W Fence Co., Inc., represent- ed by Ventura County District Council of Carpen- ters, AFL-CIO are entitled to perform the digging of post holes for fence construction and the unload- ing and transportation of fencing material by means of mechanical equipment such as post hole diggers and forklifts, at the Oxnard Beach Park project (for Nye-Nelson), the Oxnard Harbor project (for Sully-Miller Contracting Co.), the Highway 101 widening project (for Granite Construction Co.), the Ventura bike path project (for Camino Con- tracting, Inc.), the Assessment District project (for 4 In addition , the award in O'Connell's Sons, supra, on which C & W relies, was limited to a particular project. S Chairman Stephens notes that in Carpenters Local 33 (AGC of Massa- chusetts), 289 NLRB 1482 ( 1988), the Board has held that a union's en- forcement against a general contractor of a lawful union signatory con- struction industry subcontracting clause does not constitute unlawful co- ercion even when the general contractor is sued for contracting out work to a subcontractor whose own assignment of the work to employees of a different union has been upheld in a 10(k) award by the Board. The Board's award protected the subcontracting employer responsible for as- signing the work from future unlawful pressure to assign it to others, but did not permit the award to be used as a means of immunizing a general contractor against suits for its breaches of a lawful contract clause. By contrast, in cases arising outside the construction industry , in which the construction industry proviso to Section 8(e) does not privilege such sub- contracting clauses, suits against an employer aimed at seeking work in contravention of a 10(k) award can have no reasonable basis or proper motivation, and therefore may constitute coercion within the meaning of Sec 8(b)(4)(ii)(D) See Longshoremen IL WU Local 7 (Georgia-Pacific), 291 NLRB 89 (1988) 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B & Sons), and the Ventura County public works project (for Advanco).