Carpenters Southeast Missouri District Council (International Riggers)

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 561 (N.L.R.B. 1992)

561
306 NLRB No. 104
CARPENTERS SOUTHEAST MISSOURI DISTRICT COUNCIL (INTERNATIONAL RIGGERS)
1 The Employer filed a motion to reopen the record and for leave
to submit affidavit relating to new evidence, along with a brief in
support of this motion. The Employer also filed a motion for leave
to submit a reply brief. The Sheet Metal Workers opposed these mo-
tions. In view of our disposition of this case, we find it unnecessary
to pass on the Employer’s motions.
2 We note that the status of Sheet Metal Workers as a labor orga-
nization ‘‘is not a prerequisite to a finding that a jurisdictional dis-
pute exits, as it has been repeatedly held that Secs. 8(b)(4)(D) and
10(k) apply to disputes ‘between rival groups of employees,’ and not
only between rival unions.’’ Essex County Building Trades Council
(Index Construction), 243 NLRB 249 fn. 2 (1979) (quoting Team-
sters Local 107 (Safeway Stores), 134 NLRB 1320, 1322 (1961)).
Southeast Missouri District Council of Carpenters
and International Riggers, Inc. and Local 36,
Sheet Metal Workers International Association,
AFL–CIO. Case 14–CD–839
February 28, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed October 31, 1990, by International Riggers, Inc.
(the Employer), alleging that the Respondent, South-
east Missouri District Council of Carpenters (the Car-
penters), violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign cer-
tain work to employees it represents rather than to em-
ployees represented by Local 36, Sheet Metal Workers
International Association, AFL–CIO (the Sheet Metal
Workers or Local 36). The hearing was held Novem-
ber 19 and 28, 1990, before Hearing Officer Caryn L.
Fine.
The National Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.1
I. JURISDICTION
The Employer, a Nevada corporation, with its prin-
cipal office located in Rockford, Illinois, is engaged in
the installation and rebuilding of equipment. Since
April 1990, when it began its operations, the Employer
purchased for use within the State of Illinois materials
and equipment valued in excess of $50,000 from out-
side the State of Illinois. In addition, the Employer,
which has a jobsite in Cape Girardeau, Missouri, the
location of the present dispute, purchased for use at the
site materials or equipment valued in excess of
$50,000 from outside the State of Missouri. We find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Carpenters presented evidence that it is affiliated
with the United Brotherhood of Carpenters and Joiners
of America, AFL–CIO, that employees participate in
the organization, and that it exists for the purpose of
representing employees and for the purpose of dealing
with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and condi-
tions of work. We find that Carpenters is a labor orga-
nization within the meaning of Section 2(5) of the Act.
Sheet Metal Workers presented no evidence con-
cerning its status as a labor organization.2
II. THE DISPUTE
A. Background and Facts of Dispute
Lone Star Industries operates a cement production
facility in Cape Girardeau, Missouri. In July 1990,
Lone Star invited a number of contractors to submit
bids to serve as general contractor on a project involv-
ing substantial renovations to the cement production
facility in order to meet emission control standards.
Prior to the submission of its bid, the Employer
signed a national maintenance agreement between the
United Brotherhood of Carpenters and Joiners of
America and the Crane & Rigging Millwright Group
Specialized Carriers and Rigging Association. The Em-
ployer requested and received permission to use this
agreement on the Cape Girardeau project. The Em-
ployer was awarded the job and assigned the work to
employees represented by Carpenters. Stephen Teeple,
owner of the Employer, testified that the work on the
project was considered maintenance work pursuant to
the national agreement because it involved the replace-
ment of an existing air pollution system.
Shortly after the Employer submitted its bid, Local
36 Business Agent David Zimmerman contacted
Teeple. Zimmerman informed Teeple that the Lone
Star project involved some sheet metal work. Teeple
responded that, with the exception of some electrical,
insulating, and concrete work, the remainder of the
work had been assigned to employees represented by
the Carpenters. By letter dated August 31, 1990, Local
36 reminded Teeple that the Employer was a party to
a labor agreement with Local 1 of the Sheet Metal
Workers International covering work at the Employer’s
Oglesby, Illinois jobsite. Local 36 claimed that there-
fore the Employer was bound to assign the work in
question to employees it represented whenever the Em-
ployer performed work within the jurisdiction of Local
36. Local 36 indicated that if the Employer failed to
comply it would file a grievance.
Teeple thereupon contacted Carpenters Representa-
tive John Ray Conklin and informed him that in light
of Local 36’s intention to file a grievance over the
Employer’s assignment of the work the Employer
might have to change the assignment. Conklin re-
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Local 36 claims that the threat is a sham, orchestrated by the
Employer and the Carpenters as a defense to Local 36’s grievance.
We disagree. The record contains insufficient evidence from which
to conclude that the threat was not made seriously or that the Car-
penters in any way colluded with the Employer. See generally Team-
sters Local 6 (Anheuser-Busch), 270 NLRB 219 (1984).
sponded that he would do everything he could to get
the work back, including picketing the jobsite. Conklin
reiterated in his October 30, 1990 letter to Teeple that
Carpenters ‘‘will take whatever measures are required,
including strike activity, to maintain all work presently
assigned to its members.’’
The Employer did not change its work assignment.
On October 19, 1990, Teeple received a copy of the
grievance which Local 36 filed with the Local Joint
Adjustment Board for the Sheet Metal Industry in
which Local 36 claimed that the Employer had
misassigned the work in dispute.
B. Work in Dispute
The notice of hearing describes the work in dispute
as follows:
Major modifications in the clinker cooler area in-
cluding eight new cooler undergrate fans, a new
heat exchanger, a new dust collector, a new cooler
vent fan, the duct work necessary to connect the
above equipment, all supports and foundations,
and two new electrical motor rooms at the Em-
ployer’s Cape Girardeau, Missouri project.
The parties were unable to stipulate that this is an
accurate description of the work being claimed by the
Carpenters and Sheet Metal Workers.
The record reveals that the Employer has assigned
to its employees represented by the Operating Engi-
neers certain portions of the above-described work, in-
cluding the operation of cranes, air compressors, and
gasoline-powered welding machines used to perform
work related to the above-described work. In addition,
the Employer has entered into contracts with other em-
ployers to perform electrical work, insulation work,
and pile driving, concrete and foundation work on the
project. The Employer has assigned to its employees
represented by the Carpenters all project work not
being performed by employees represented by Oper-
ating Engineers or employed by the various sub-
contractors. Work assigned to employees represented
by the Carpenters includes sheet metal work.
Sheet Metal Workers has avoided making clear what
work it is seeking for employees it represents. Our re-
view of the Sheet Metal Workers conversations with
the Employer, the letter to the Employer in which it
threatened to file a grievance, and the grievance itself
indicates that the Sheet Metal Workers appears to
claim only the sheet metal work involved on the
project which has been assigned to employees rep-
resented by the Carpenters.
Based on the above, we find that the work in dis-
pute is the sheet metal work involved in making the
modifications in the clinker cooler cooker area includ-
ing eight new cooler undergrate fans, a new heat ex-
changer, a new dust collector, a new cooler vent fan,
the duct work necessary to connect the above equip-
ment, all supports and foundations, and two new elec-
trical motor rooms at the Employer’s Cape Girardeau,
Missouri project.
C. Contentions of the Parties
The Employer asserts that there is reasonable cause
to believe that Carpenters violated Section 8(b)(4)(D)
of the Act when it threatened to picket the Cape
Girardeau jobsite if the Employer reassigned the work
in dispute to Sheet Metal Workers. The Employer con-
tends that the disputed work should be awarded to Car-
penters-represented employees based on its collective-
bargaining agreement with Carpenters, employer pref-
erence, past practice, relative skills, and economy and
efficiency of operation. Carpenters agrees with the Em-
ployer’s contentions.
Sheet Metal Workers argues that this is not a juris-
dictional dispute because there are not two competing
claims for the work. Sheet Metal Workers contends its
grievance against the Employer—filed to obtain wages
and fringe benefit contributions as damages because of
the Employer’s breach of its agreement with Sheet
Metal Workers Local 1—is not a claim for the work.
Sheet Metal Workers also claims that there might exist
a mechanism, to which all parties are bound, for the
voluntary resolution of this dispute.
D. Applicability of the Statute
In a Section 10(k) proceeding, the Board must deter-
mine whether there is reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred. In the
instant case, this requires a finding that there is reason-
able cause to believe that a party has used proscribed
means to enforce its claim and that there are com-
peting claims to disputed work between rival groups of
employees.
As noted above, in response to the Employer’s sug-
gestion that it might have to reassign the disputed
work because of the Sheet Metal Workers’ grievance,
Carpenters threatened to take whatever action was nec-
essary in order to keep the work, including picketing.
Carpenters subsequently repeated this threat in a letter
to the Employer.3 Accordingly, if there are competing
claims to disputed work between rival employee
groups, there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) had occurred.
Sheet Metal Workers contends there are not compet-
ing claims because its grievance against the Employer
does not constitute a claim for the work. We reject this
contention. Relying on its contract with the Employer,
563CARPENTERS SOUTHEAST MISSOURI DISTRICT COUNCIL (INTERNATIONAL RIGGERS)
4 Chairman Stephens, who dissented in Laborers Local 731 (Slat-
tery Associates), 298 NLRB 787 (1990), finds that the present case
is distinguishable from Slattery.
5 It is well settled that there is reasonable cause to believe that a
violation of Sec. 8(b)(4)(D) has occurred if a labor organization that
represents employees who are assigned the disputed work threatens
to picket or otherwise coerces an employer to continue such an as-
signment. Sheet Metal Workers Local 107 (Lathrop Co.), 276 NLRB
1200, 1202 (1985).
6 Although the Employer and Carpenters proposed to stipulate at
the hearing that there is no such means, Sheet Metal Workers claims
that the parties to this dispute may be parties to a mechanism for
its voluntary adjustment. This bare assertion is unsupported by the
record.
7 The Carpenters is affiliated with this International Union. The
agreement is a nationwide contract.
8 Local 36 argues that the Board should not rely on employer pref-
erence to assign the work because the Employer’s preference was
dictated by Lone Star Industries, who wished the assignment to be
made to the Carpenters in order to settle litigation unrelated to this
proceeding. Local 36 objects to the hearing officer’s quashing a sub-
poena for documents from Lone Star pertaining to that litigation.
Local 36’s argument is without merit. The record shows, and
Local 36 does not directly claim otherwise, that the Employer’s own
preference is to assign the work to employees represented by the
Carpenters.
the Carpenters claims the disputed work for the em-
ployees it represents. By filing its grievance for viola-
tion of a collective-bargaining agreement between the
Employer and Sheet Metal Workers Local 1, which
Sheet Metal Workers contends applies to the Employ-
er’s Cape Girardeau jobsite, Sheet Metal Workers was,
in effect, making a demand for the work. This case
presents a traditional 10(k) situation in which two
unions have contracts with the Employer and each
union claims its contract covers the same work. Labor-
ers Local 931 (Carl Bolander & Sons), 305 NLRB 490
(1991). We conclude that there are competing claims
to disputed work between rival groups of employees.4
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred5 and that there ex-
ists no agreed method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act.6 Accordingly, we find that the dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
and certifications
No party claims there are Board certifications appli-
cable to the work in dispute.
The Employer is signatory to an agreement between
the United Brotherhood of Carpenters and Joiners of
America, AFL–CIO7 and the Association of Millwright
Contractors, Crane & Rigging Millwright Group Spe-
cialized Carriers and Rigging Association covering the
performance of repair, replacement, maintenance, and
renovation work. This agreement governs, inter alia,
the wages and fringe benefits negotiated by the local
United Brotherhood of Carpenters-affiliated union
within whose territorial jurisdiction the work covered
by the national agreement is to be performed. The Em-
ployer is also signatory to a ‘‘Commercial & Industrial
Contract’’ between the Southeast Missouri Contractors
Association and Carpenters Locals 1770 and 2030 of
the Southeast Missouri District Council of Carpenters.
This contract is in effect on all jobs within the District
Council’s territorial jurisdiction, including Lone Star
Industries’ Cape Girardeau project.
The Employer does not have a contract with Local
36 covering work at this jobsite. As noted previously,
the Employer has a contract with Sheet Metal Workers
Local 1 covering the Employer’s work at Lone Star In-
dustries’ Oglesby, Illinois location. Local 36 asserts
that this contract covers the work in dispute at the Em-
ployer’s Cape Girardeau jobsite. Because this factor
would not, in any event, alter our determination, we
find it unnecessary to determine whether Sheet Metal
Workers Local 1’s contract with the Employer applies
to the work in dispute.
2. Employer preference
The Employer prefers that employees represented by
Carpenters continue to perform the work in dispute.
Accordingly, we find this factor favors an award of the
disputed work to employees represented by Car-
penters.8
3. Past practice
Employees represented by the Carpenters have per-
formed virtually all maintenance and renovation work
at the Cape Girardeau facility since it opened. Local
36 claims sheet metal workers have performed similar
work at the Employer’s Oglesby, Illinois facility. Be-
cause the record is ambiguous, we find this factor does
not favor an award of the disputed work to employees
represented by either union.
4. Area practice
Carpenters and Local 36 claim that employees rep-
resented by them perform similar maintenance and ren-
ovation work for other plants in the Cape Girardeau
area. We find this factor does not favor an award of
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the disputed work to employees represented by either
union.
5. Relative skills
The record shows that the employees represented by
Carpenters possess the skills required to perform the
disputed work. There is evidence that sheet metal
workers perform similar work. We are unable to rely
on this factor to award the disputed work to either
group of employees.
6. Economy and efficiency of operation
Teeple testified that he selected Carpenters-rep-
resented employees to perform the disputed work. Car-
penters-represented employees also perform other
project work related to the Employer’s completion of
its contract with Lone Star Industries. The Sheet Metal
Workers claim only a portion of the work carpenters
perform for the Employer. If the Employer used em-
ployees represented by the Sheet Metal Workers to
perform only the disputed work, the Employer would
still need Carpenters-represented employees to perform
the project work which the Sheet Metal Workers do
not claim.
We find that it is more efficient to award the dis-
puted work to Carpenters-represented employees.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Carpenters are en-
titled to perform the work in the dispute. We reach this
conclusion relying on the factors of employer pref-
erence and economy and efficiency of operation. In
making this determination, we are awarding the work
to employees represented by Carpenters, not to that
Union or its members. This determination is limited to
the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of International Riggers, Inc., represented
by Southeast Missouri District Council of Carpenters,
are entitled to perform the sheet metal work involved
in making the modifications in the clinker cooler cook-
er area including eight new cooler undergrate fans, a
new heat exchanger, a new dust collector, a new cooler
vent fan, the duct work necessary to connect the above
equipment, all supports and foundations, and two new
electrical motor rooms at International Riggers’ Cape
Girardeau, Missouri project.