Local 1005, Northwest Indiana & Vicinity, Carpenters

LOCAL 1005, NORTHWEST INDIANA & VICINITY, CARPENTERS Local 1005, Northwest Indiana & Vicinity District Council of Carpenters and J. F. Edwards Con- struction Company and Laborers International Union of North America, Local No. 81. Case 13-CD-279 December 15, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by J. F. Edwards Construction Company, herein called the Employer, alleging that Local 1005, Northwest Indiana & Vicinity District Council of Carpenters, herein called Car- penters, has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by Laborers International Union of North America, Local No. 81, herein called Laborers. Pursuant to notice, a hearing was held before Hearing Officer Margret J. Diaz on September 9, 1980.1 All parties appeared and were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a corporation with a place of business in Genseco, Illinois, is engaged as a contractor in the highway sign, traffic, and lighting signal construc- tion business. The Employer operates in an area comprising the States of Indiana, Illinois, Iowa, Nebraska, and Wisconsin and stipulated that during the past calendar year the Employer had gross rev- enues which exceeded $1 million and it performed services directly to customers outside the State of Illinois which were in excess of $50,000. The par- ties also stipulated, and we find, that the Employer I All dates herein are 1980, unless otherwise specifically stated. 253 NLRB No. 103 is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectu- ate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Carpen- ters and Laborers are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts of the Dispute In April 1980, J. F. Edwards Construction Com- pany entered into a contract with the Indiana State Highway Commission for the construction of high- way signs and traffic and lighting signals along In- terstate Route 65, from the Indiana Tollroad to In- diana Route 2. Pursuant thereto, the Employer hired about 15 employees represented by the fol- lowing labor unions: 1. One individual represented by the Operating Engineers International Union; 2. About six persons represented by the Interna- tional Brotherhood of Electrical Workers; and 3. Six to eight persons represented by the Labor- ers International Union. The Employer, by letter, assigned the work of handling sign materials, setting of foundation rein- forcement, foundation forming, sign post and sign erection, and sign-related cleanup to employers represented by the Laborers. Soon thereafter, the Employer became a signatory to a collective-bar- gaining agreement with Laborers. On or about the morning of August 25, one of the Employer's work crews began excavating a foundation hole for a cantilevered sign at the Inter- state 65 worksite. During the preliminary stages of the excavation, water began seeping into the foun- dation hole, and it became evident to Duane West, project foreman, that in order to prevent the walls of the hole from giving way a wooden box-like form2 would be needed to support the walls during the remaining excavation work. Two laborers on the jobsite built the form from plywood and angle irons in about 1 hour. At approximately 11:45 a.m., as the form was being placed into the partially ex- cavated hole, Joseph Manley, representative of Northwest Indiana & Vicinity District Council of Carpenters, arrived at the jobsite, asked whether anyone had a Carpenters card, and stated, "[Y]ou better get a Carpenter on the job here within the hour" and "[I]f you don't have a Carpenter back 2 Although referred to as a wooden "form," the box-like structure re- ferred to here was used as a stopgap measure to prevent the earthen walls of the foundation hole from caving in during excavation 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out here, I'll have the State Police out here after you." The laborers and the operating engineers were then told to go to lunch, and West left the jobsite to discuss the matter with his supervisor, Francis Teats. Upon returning to the jobsite, one of the la- borers handed West the business card of J. C. Stan- ley, an organizer for the Carpenters Union. West also discovered that the plywood form had been torn apart, the water pump had been thrown into a ditch, the air cleaner in the pump had been filled with sand, and the extension cord for the pump had been cut. Another business card bearing the name of J. C. Stanley was found near the water pump. At that point, work was suspended for the day. During the afternoon of August 25, Michael Lo- giudice, controller of the Employer, received a telephone call from James Donnella, secretary-trea- surer of the Carpenters Union. Donnella informed Logiudice that the Employer was doing Carpenters work on the Interstate 65 project, and that the Em- ployer "better hire a carpenter." On August 26, at or about 7 a.m., West, Virgil Goin, representative for the Laborers Union, and the work crew arrived at the jobsite to complete the foundation work. At or about 10:15 a.m., Manley arrived at the jobsite with a camera and began taking pictures. Shortly thereafter, six indi- viduals, apparently under Manley's direction and control, began picketing the jobsite. One of the picket signs read "Non Union Rats," and another read, "J. F. Edwards Construction, Unfair to the Carpenters." Manley then left the jobsite, and the pickets remained. Thereafter, Employer's operating engineer and a concrete truck driver represented by the Teamsters Union refused to cross the Car- penters picket line. During the picketing an indi- vidual, who identified himself as J. C. Stanley, stated to West, "[W]hy don't you just hire a car- penter," and also stated that the picketing would continue until the Employer hired a carpenter. At or about 2:45 p.m., after being notified once again that the concrete driver would not cross the picket line, the Employer dismissed the work crew for the day and the pickets left the jobsite. B. The Work in Dispute The work in dispute involves the erection and setting of concrete forms,3 anchor bolts, securing of anchor bolts, templates, and curb angles, as well s The concrete base of the highway sign is shaped through a process known as an "earth formed foundation" With this method, concrete is poured directly into a precisely shaped 9- to 12-foot deep earthen hole without the use of conventional wooden or steel forms. The record indi- cates that the Employer uses prefabricated "steel forms" to shape and cap off the foundation concrete to a 2-1/2-foot depth. as the construction and placement of wooden box- like forms for the purpose of shoring up the walls of foundation holes. C. The Contentions of the Parties The Employer contends that the work in dispute should be assigned to employees represented by the Laborers Union because it has a collective-bargain- ing agreement with the Laborers covering the dis- puted work, and because it has assigned, by letter, the disputed work to the employees represented by Laborers. It further contends that such an assign- ment is supported, inter alia, by considerations of industry and area practice, Employer's preference, relative skills, and efficiency and economy of oper- ations. Laborers similarly asserts that the work in ques- tion was properly assigned to its members, and that such an assignment is consistent with the collec- tive-bargaining agreement, industry and area prac- tice, and the relative skills required to perform such work. Carpenters, in substance, takes the position that pursuant to industry and area practice the employ- ees represented by the Carpenters should have been assigned the disputed work. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 upon a method for the voluntary adjustment of the dis- pute. On the basis of the entire record, we conclude that there is reasonable cause to believe that a vio- lation of Section 8(b)(4)(D) of the Act has oc- curred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act.4 Accord- ingly, we find that this dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after 4 Under the terms of the collective-bargaining agreement entered into by the Employer and the Laborers, it was provided that all jurisdictional disputes between the Laborers and unions not having an agreement with the Employer would be resolved by the National Labor Relations Board. It is undisputed that the Employer and the Carpenters are not signatories to a collective-bargaining agreement, and, thus, any understanding reached between the Laborers and the Carpenters with respect to this ju- risdictional dispute would be ineffectual in binding the Employer. 786 LOCAL 1005, NORTHWEST INDIANA & VICINITY, CARPENTERS giving due consideration to various factors. 5 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.6 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements J. F. Edwards Construction Company is a signa- tory to a collective-bargaining agreement with La- borers. That agreement applies, inter alia, to high- way construction including "construction, modifi- cation, additions or repairs of roads and streets . . . and construction incidental thereto." Further, the contract includes the job title "Sign Installation, in- cluding supporting structure" under the "WAGE AND FRINGES" article. The contract also incor- porates by reference the jurisdictional guidelines set forth in the 1972 Laborers' International Union of North America, State of Indiana District Coun- cil #57 Jurisdictional Guidelines Booklet. 7 It is un- disputed that the Employer is not a party to a col- lective-bargaining agreement with Carpenters. 2. Area practice In support of its contention that established area practice supports the assignment of the disputed work to the Laborers, the Employer largely relies on the testimony of Laborers Union Representative Jerry W. Lee that other construction companies in Indiana have consistently assigned work similar to that which is disputed to laborers. Lee identified letters from two area sign installation companies as- signing highway sign installation work, including supporting structures, to laborers. The Employer testified that prior to assigning the disputed work to laborers, it conferred with the National Electric Contractors Association (NECA) and with an area contractor with respect to the as- signment of the work. On the basis of these meet- ings, the Employer found that employees repre- sented by Laborers were assigned the disputed work in competing companies. In support of its as- signment to employees represented by Laborers, the Employer also testified that the work assign- ' N.LR.B. v. Radio Television Broadcast Engineers Union. Local 1212 International Brotherhood of Electrical Workers AFL-CIO [Colum- bia Broadcasting System], 364 U.S. 973 (1961). 6 International Association of Machinists Lodge No. 1743, AFL CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). 7 The booklet contains detailed descriptions of laborers duties associat- ed with job classifications at various types of construction projects. Under "HIGHWAY CONSTRtJCTION, it is provided that laborers are responsible for performing "work in the excavation, prefabrication, con- creting . . for ways . . . and all other labor connected therewith"; and "[Blracing shoring and cribbing ." ment was based on its personal observation of as- signment practices at another area company. Carpenters Representative James Donnella8 testi- fied that carpenters perform work similar to the disputed work for at least six Indiana construction companies, but did not produce any work assign- ment letters or other direct evidence in support of this claim. In addition, Carpenters produced a col- lective-bargaining agreements providing in part that the agreement covers the "fabrication and erection of concrete forms and the dismantling of same.... The setting and dismantling of forms. . . . The making of all anchor bolts and tie rods which are to be fabricated on the job. The fabrica- tion of templates and anchor bolts by hand." In ad- dition, the agreement provides that, "[T]here shall be one or more carpenters employed on the main- tenance of forms, anchor bolts . . . while concrete is being poured." Thus, while Laborers and Carpenters have over- lapping jurisdictional boundaries with respect to some of the disputed work, the collective-bargain- ing agreement, assignment letters, and jurisdictional guidelines booklet presented as evidence at the hearing clearly demonstrate that on an areawide basis laborers perform virtually all work of the type which is in dispute. The evidence of record establishes to our satis- faction that the factor of area practice favors an award of the disputed work to employees repre- sented by Laborers. 3. Relative skills The record does not indicate that the actual work of erecting and setting of concrete forms, anchor bolts, securing of anchor bolts, templates, as well as the construction and placement of wooden shoring-forms requires any special skill or training not possessed by either laborers or carpenters. Ac- cordingly, we find that this consideration does not favor an award to either of the competing Unions. 4. Efficiency and economy of operations With respect to efficiency, the Employer testified that with a composite crew of carpenters and la- borers assigned to the job, crew size, speed, and coordination would be adversely affected. In sup- port of this contention, the Employer testified that since laborers would still be required to perform 8 Donnella is the business manager and secretary-treasurer of North- west Indiana District Council of the United Brotherhood of Carpenters and Joiners of America a The Employer is not a signatory to this agreement, but the agree- ment is given some weight for purposes of determining area practice since three separate area contractors associations are signatories and are bound by its terms 787 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duties not claimed by carpenters, the total size of the work force would increase while the amount of work performed would remain the same. Further, carpenters and laborers would necessarily alternate in performing their respective duties, creating a great deal of idle time for both groups.' ° The Em- ployer also claims with respect to the building of the wooden shoring-forms that it would be highly inefficient to assign that work to carpenters. The Employer stated that such wooden forms are infre- quently needed, and, after discovery that a form is necessary, it must be built quickly and promptly placed into position. The wooden form in dispute here was built by two laborers in about I hour. The employment of carpenters to perform duties which are needed infrequently and which can be completed in a relatively short time would be pa- tently inefficient,'' and promote fragmentation of the Employer's work. With respect to economy of operations, the Em- ployer testified that due to the highly competitive nature of the sign installation industry, increasing the size of the work crew would preclude it from submitting competitive job bids. Thus, an unfore- seeable delay in excavating a foundation hole, ac- companied with the need to locate a carpenter to build a wooden form, would greatly increase the amount of time idle by laborers, and thus increase the Employer's wage payments without any attend- ant gain in production. From the foregoing we conclude that the factors of efficiency and econo- my tend to favor the employees represented by La- borers. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, we conclude that employees who are represented by Laborers International Union of North Amer- ica, Local No. 81, are entitled to perform the work 'O For example, carpenters would be idle while laborers shape the foundation hole, vibrate the concrete during pouring, and smooth the concrete; and laborers would be idle while carpenters set the anchor bolts, level the anchor bolts, and set the steel form. " The Employer testified that only one such wooden form was needed on the entire Interstate 65 sign project. in dispute. We reach this conclusion on the basis of the established area practice, the collective-bargain- ing agreement, letter of assignment, the relative economy and efficiency of operations, and Em- ployer's preference, but not the factor of relative skills which in our view does not weigh in favor of either group of employees. In making this determi- nation, we are awarding the work in question to employees who are represented by Laborers Local 81, but not to that Union or its members. The pres- ent determination is limited to the particular con- troversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of J. F. Edwards Construction Company who are represented by Laborers Inter- national Union of North America, Local No. 81, are entitled to perform the work of erecting and setting of concrete forms, anchor bolts, securing anchor bolts, templates, and curb angles, as well as the construction and placement of wooden box-like forms for the purpose of shoring up the walls of foundation holes at the highway sign construction project along Interstate 65 from the Indiana Toll- road to Indiana Route 2. 2. Local 1005, Northwest Indiana & Vicinity District Council of Carpenters, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require J. F. Edwards Construction Company to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 1005, North- west Indiana & Vicinity District Council of Car- penters, shall notify the Regional Director for Region 13, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 788