Operating Engineers, Local No. 234

OPERATING ENGINEERS, LOCAL NO. 234 199 International Union of Operating Engineers, Local No. 234 and Garmer Construction Co. and Car- penters Local Union No. 106 of the United Brotherhood of Carpenters and Joiners of America International Union of Operating Engineers, Local No. 234 and Dock-Built Homes, Inc. and Car- penters Local Union No. 106 of the United Brotherhood of Carpenters and Joiners of America. Cases 18-CD-244 and 18-CD-245 August 14, 1980 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on February 4, 1980, by Garmer Construction Co., herein called Garmer or Em- ployer, in Case 18-CD-244, and by Dock-Built Homes, Inc., herein called Dock-Built or Employ- er, alleging that International Union of Operating Engineers, Local No. 234, herein called Operating Engineers, has violated Section 8(b)(4)(D) of the Act by threatening, coercing, and restraining Garmer and Dock-Built with an object of forcing them to assign certain work to employees repre- sented by Operating Engineers rather than to em- ployees represented by Carpenters Local Union No. 106 of the United Brotherhood of Carpenters and Joiners of America, herein called Carpenters. Pursuant to notice, a hearing was held before Hearing Officer David M. Biggar on February 21, 1980. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter, the Em- ployers, Operating Engineers, and Carpenters filed briefs. 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. Upon the entire record in this case, including the briefs of the parties, the Board makes the following findings: I. THE BUSINESSES OF THE EMPLOYERS Garmer Construction Co., an Iowa corporation, is a general contractor working primarily on com- mercial construction projects. Garmer is currently a general contractor on a project known as the Housing for the Elderly project, South Ridge Vil- lage, which is owned by the HOMZ Corporation. 251 NLRB No. 31 The value of Garmer's contract with HOMZ ex- ceeds $1 million. During the past 12 months, Garmer has purchased materials valued in excess of $50,000 which were shipped from points located directly outside the State of Iowa to places within the State of Iowa. Dock-Built Homes, Inc., an Iowa corporation, is a carpentry framing contractor. Dock-Built is cur- rently engaged as a subcontractor of the Carriage Corporation to perform carpentry framing work on a project owned by Carriage known as the Bishop Drumm Nursing Care Facility and Adult Living Center in Johnston, Iowa. The total value of this project exceeds $6 million and Dock-Built expects to receive approximately $200,000 pursuant to the terms of its contract with Carriage. Carriage has purchased and received materials valued in excess of $50,000 which were shipped to the jobsite in Johnston, Iowa, from points located outside the State of Iowa. In view of the above, we find that the Employ- ers, Garmer and Dock-Built, are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that the Oper- ating Engineers and the Carpenters are labor orga- nizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute is the operation of forklift tractors used to transport building framing materi- als from stockpiles or delivery vehicles to the structures being erected and, further, the move- ment of framed wooden structures onto the build- ings that are being erected or the movement of such building materials to other points on the pro- jects known as the Bishop Nursing Care Facility and Adult Living center located in Johnson, Iowa, and at the Housing for the Elderly, project, south Ridge Villiage, located at 1200 Cummings Road, in Des Moines, Iowa at Bishop Drumm, and the Housing for the Elderly, located at 1200 Cummings Road in Des Moines, Iowa. B. Background and Facts of the Dispute 1. Case 18-CD-244 Garmer is the general contractor on the Housing for the Elderly project in Des Moines, Iowa. As in- dicated by the title, the project is intended to pro- 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vide housing for elderly people and will eventually consist of approximately 93 apartments. The apart- ments will be housed in several three-story build- ings constructed on cement slabs. The skeletal structure of the buildings will be wood frame, a type of construction comparable to that employed in the construction of one- and two-family dwell- ings. Garmer subcontracted the carpentry work to Gibson Enterprises, Inc., hereinafter Gibson, which has a collective-bargaining contract with the Car- penters. This contract, classified as a residential agreement, evolved from an informal agreement among the area's craft unions, for the purpose of enabling the Carpenters to reduce their its scale for residential construction work. Apparently, the lower wage scale, and the understanding among the other unions not to interfere with the Carpen- ters on residential projects, was to permit the Car- penters to be more competitive with nonunion labor, thus enabling that Union to receive a greater share of the available residential construction work. This contract, at section 7, rule 13, states in perti- nent part: It is further agreed that Employees included in the bargaining unit herein, shall handle the movement of materials and supplies used by them on any jobsite from the original stockpile thereon .... The handling of said materials and supplies shall be by whatever means, manually or me- chanically, determined by the contractor. The contract defined residential construction to include, inter alia, apartments and nursing and re- tirement homes of dimensional frame construction, classified under the Davis-Bacon Act as residential construction. Pursuant to Agency Memorandum No. 130, dated July 14, 1978, issued by the Wage and Hour Division of the U.S. Department of Labor, it appears that the construction involved here comes within the definition of residential con- struction for purposes of the Davis-Bacon Act. While Garmer has not executed a contract with the Carpenters, it is a member of the Des Moines Construction Council, and as such it is bound to the contract between the Council and the Operat- ing Engineers. That contract, at article 1, section 8, provides: It is agreed that this agreement shall apply to all subcontractors . . . while working for the Contractor who is a party to this Agreement. It is understood that the specific wage rates and fringe benefits set forth in this Agreement shall apply at all times under the provision of this Article, except where they are in conflict with Section 2 of this Article. On or about January 10, 1980, Brice Ashman, agent for the Operating Engineers, telephoned Jim Kenworthy, general manager of Garmer, regarding the operation of the forklift on the site. A meeting to discuss the situation was arranged for the fol- lowing Friday. However, as a result of unforeseen circumstances, the meeting was canceled and Ken- worthy's suggestion to postpone the meeting until early March was rejected by Ashman. Ashman did comment that, if a meeting could not be arranged, "the Operating Engineers would have to make a move." On January 21, Ashman visited the South Ridge Village site and, according to Marc Ken- worthy, a job superintendent and the son of Jim Kenworthy, stated that the forklift job was the Op- erating Engineers work and that if an operating en- gineer was not assigned he "might have to do some advertising." On January 22, the Operating Engi- neers placed a picket on the project. The picket sign stated that Gibson was jeopardizing working conditions and area wage rates. Prior to the imme- diate controversy, there had been discussions among representatives of the Carpenters, Operating Engineers, and the Des Moines Construction Coun- cil aimed at resolving the issue, but the problem was not resolved. On February 4, 1980, after the presence of the picket had prevented the delivery of some material, Garmer filed the instant unfair labor practice charge. 2. Case 18-CD-245 Dock-Built was engaged by the Carriage Corpo- ration to provide carpentry work on the Bishop Drumm project commencing in the fall of 1979. The Bishop Drumm project is comparable to the South Ridge Village site, and the work contracted to Dock-Built is the same being performed by the carpenter employees of Gibson. Dock-Built, like Gibson, is a signatory to the Carpenters residential construction agreement. According to the testimony of Norman Dock- stadter, the owner of Dock-Built, Jack Lairmore and Bub Mahannah, representatives of the Operat- ing Engineers, visited the Bishop Drumm site in December 1979, and met with Dockstadter. Dock- stadter testified that the two representatives in- formed him that the operation of the forklift was the Operating Engineers work. Dockstadter replied that, according to his contract with the Carpenters, the work was within the Carpenters jurisdiction. Shortly thereafter, Dockstadter and Lairmore agreed to meet with Jack Frost of the Carpenters and Dock-Built's competitors to discuss the prob- lem. Frost, however, would not attend, and as a result the meeting was not held. Lairmore then re- quested that Dockstadter "join" the Operating En- OPERATING ENGINEERS, LOCAL NO. 234 201 gineers, suggesting that such action would avoid the necessity of having to place a picket at the site. According to Dockstadter, Lairmore stated that they were definitely going to stop the job if an op- erating engineer was not assigned to operate the forklift. When Dockstadter refused, Lairmore stated that there would be a picket on the jobsite the following morning. The next morning, January 10, 1980, a picket appeared at the project with a sign stating "Dock-Built Homes is jeopardizing wages and working conditions established by Local 234." When Lairmore refused Dockstadter's re- quest to remove the picket so as to enable a crane operator to enter the project without crossing the picket line, Dockstadter, on February 4, filed the present unfair labor practice charge. The Operating Engineers removed the picket on February 8. C. Contentions of the Parties The Operating Engineers contends that its con- duct was not in violation of Section 8(b)(4)(D) of the Act. The Union asserts that the projects in- volved herein involve commercial work and, there- fore, the Carpenters residential construction agree- ments are inapplicable. The Operating Engineers argues that the informal understanding reached among the craft unions 10 years ago regarding a reduced wage scale for Carpenters on residential projects was never intended to extend to projects of this magnitude. Further, at least with respect to the South Ridge Village site, the Operating Engi- neers contends that its action constituted a lawful protest of Garmer's violation of the subcontracting clause of the Operating Engineers contract with the Des Moines Construction Council, of which Garmer is a member.' Regarding the Bishop Drumm site, the Union contends that the picketing was nothing more than traditional area standards picketing and thus outside the ambit of Section 8(b)(4)(D). Garmer and Dock-Built contend that there is reasonable cause to believe that the Operating En- gineers violated Section 8(b)(4)(D) of the Act. Both Employers assert that the projects involved in the current controversy are residential construction sites, that the Carpenters "residential" agreement is, therefore, applicable, and that the contract covers the work in dispute. Furthermore, Garmer and Dock-Built claim that the disputed work should be awarded to their employees represented by the Carpenters because the Carpenters collective-bar- gaining agreement covers the work in dispute, car- penters possess the skills necessary to perform the disputed work, assignment of the work to carpen- We noe thai v hile ht Opcra:l lg gine g .cr., .oiced this politilon t the hearing, it did not raise thi, argument il its brief wto the Board ters will result in a more economic and efficient operation, and the area and employer practice has been to assign carpenters to perform this work on residential construction projects. Both Employers further request, since the conflict here will be a continuing source of dispute in the future, that the Board's award extend to all similar projects falling within the geographical jurisdiction of the Carpen- ters contract. The Carpenters arguments for awarding the work in dispute to employees it represents are the same as those raised by Garmer and Dock-Built. 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. The record reveals that on several occasions during December 1979 and January 1980 repre- sentatives of the Operating Engineers contacted Garmer and Dock-Built for the purpose of discuss- ing the union affiliation of the employees assigned to operate the forklifts on the Employers' respec- tive construction projects. The record further re- veals that, shortly after both Employers had indi- cated that they would not cooperate with the Op- erating Engineers, the Union placed picket signs on the two projects. In view of the testimony of the representatives of the Employers that officials of the Operating Engineers had threatened to picket the projects unless an operating engineer was as- signed the work in dispute, and the testimony of Operating Engineers officials that that Union has a present and future claim to that work, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. Fur- ther, since the parties have stipulated that they are not bound to a voluntary method of settling this ju- risdictional dispute, we find that it is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. 2 The following factors are relevant in making a determination of the dispute before us. i V.. R x Radio ao. d ich , on rOarl ['tlhgi % [BtlioL, Lal 1212. In-wuoit il roithrhiNd (a Elc [rilxa Iorcr. F 1 - '( [(olumn lua Broadcaitti S emn]., 3. 4 I S 573 I 16411 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. The collective-bargaining agreements With respect to the Bishop Drumm project, nei- ther Carriage Corporation, the general contractor, nor Dock-Built has a collective-bargaining agree- ment with the Operating Engineers. Dock-Built, however, does have a contract with the Carpenters which, as mentioned above, covers the work in dis- pute. Accordingly as to the Bishop Drumm site, this factor favors an award to employees represent- ed by the Carpenters. Garmer, the general contractor at the South Ridge Village project, has a contract with the Op- erating Engineers which, as previously discussed, provides that the Employer will subcontract unit work only to subcontractors who will comply with the wage and fringe benefit provisions set forth in that agreement. Gibson, the carpentry subcontrac- tor, is a signatory to the Carpenters residential agreement which clearly covers the work in dis- pute. Thus, the Carpenters' and the Operating En- gineers' opposing claims to the work in dispute appear to be predicated on their respective con- tracts. Since the evidence demonstrates that over the past several years the Operating Engineers has declined to enforce its contractual claim with re- spect to residential construction and has acceded to carpenters' right to perform the work in dispute, and since the record supports the Employers' claim that these projects involve residential construction, we find this factor favors assignment of the disput- ed work to employees represented by the Carpen- ters at the South Ridge Village site. 2. Area and company practice The record is clear, and the Operating Engineers does not argue to the contrary, that over the past several years operation of a forklift in conjunction with carpentry work being performed on residen- tial construction sites has been performed by em- ployees represented by the Carpenters. According- ly, we find this factor favors an award to employ- ees represented by the Carpenters. 3. Efficiency and economy We find that the evidence supports the Employ- ers' argument that the employment of an operating engineer to man the forklift would decrease effi- ciency. The operation of the forklift normally oc- cupies less than 1 hour per day, and therefore a full-time operator is not required. Consequently, an operating engineer would spend only a small per- centage of time performing the work and would remain idle when the forklift was not in use. In contrast, employees represented by the Carpenters would be able to utilize this downtime more pro- ductively by performing carpentry work. In these circumstances, we find that this factor favors an award to employees represented by the Carpenters. 4. Relative skills The record shows that both groups of employees are capable of performing the disputed work in a safe and capable manner. Accordingly, this factor favors neither employees represented by the Oper- ating Engineers nor employees represented by the Carpenters. 5. Employer's preference The disputed work is now being performed by employees represented by the Carpenters pursuant to the Employers' assignments. The Employers are satisfied with the skill and performance of those as- signed the work in dispute and prefer that the work be performed by employees represented by the Carpenters. The Employers' current assign- ments and preference thus favor an award to these employees. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that the employees represented by the Car- penters are entitled to perform the disputed work. In reaching this conclusion, we have relied upon the Employers' assignments of the disputed work consistent with their past practices, the collective- bargaining agreements, the area practice concern- ing the assignment of the disputed work, and the economic and operational advantages of having carpenters perform the disputed work. According- ly, we shall determine the existing jurisdictional dispute by awarding the work in dispute to em- ployees represented by the Carpenters. In making this determination, we are assigning the disputed work to employees represented by the Carpenters but not to that Union or its members. Our determi- nation is limited to the work in controversy being performed by the Employers at the two construc- tion sites involved herein. 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 proceedig, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees employed by Dock-Built Homes, Inc., at the Bishop Drumm Nursing Care Facility and Adult Living Center construction site, John- ston, Iowa, and employees employed by Gibson OPERATING ENGINEERS. LOCAL NO. 234 203 Enterprises, Inc., at the Housing for the Elderly project construction site, Des Moines, Iowa, who are represented by Carpenters Local Union No. 106 of the United Brotherhood of Carpenters and Joiners of America are entitled to perform the work of operating forklift tractors for transporting building frame materials from stockpiles or deliv- ery vehicles to the structures being erected, and the work of moving framed wooden structures onto the buildings that are being erected or the work of moving such building materials to other points at these two construction sites. 2. International Union of Operating Engineers, Local No. 234, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Dock- Built Homes, Inc., Garmer Construction Co., and Gibson Enterprises, Inc., to assign such work to in- dividuals who are represented by that labor organi- zation. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local No. 234, shall notify the Regional Director for Region 18, in writing, whether it will refrain from forcing or requiring the Employers, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to em- ployees represented by that labor organizaton rather than to the employees employed by the Em- ployers and represented by Carpenters Local Union No. 106 of the United Brotherhood of Car- penters and Joiners of America.