Carpenters (C & W Fence)

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 1091 (N.L.R.B. 1989)

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).