Laborers' International Union Local 911

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1389 (N.L.R.B. 1975)

LABORERS' INTERNATIONAL UNION LOCAL 911 138,9,
Laborers' International Union of North America,
Local 911 and McClintock Drywall Service and
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Local 722. Case 38-CD-125
June 30, 1975
DECISION AND DETERMINATION OF
DISPUTE
and has been supplying drywall to McClintock: Its
purchases of goods and materials during the past-
calendar year from suppliers outside the State' t5f
Illinois exceeded $50,000. -
We find that McClintock and Frankfort arep
employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following the filing of a charge on March 12, 1975, by
McClintock Drywall Service, herein called McClin-
tock, against Laborers' International Union of North
America, Local 911, herein called Laborers, alleging
that it violated Section 8(b)(4)(i) and (ii)(d) of the Act
by threatening certain proscribed activity with the
object of forcing the Employer to assign work in
dispute to employees represented by the Laborers
rather than to employees represented by the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called
Teamsters Local 705 or Local 722. Pursuant to a
notice of hearing, a hearing was held before Hearing
Officer Richard C. Auslander on April 3, 1975. All
parties appeared and were afforded full opportunity
to be heard, examine and cross-examine witnesses,
and adduce evidence bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
McClintock is a sole proprietorship located in
Kankakee, Illinois, and is engaged as a drywall
contractor in the construction of the Lincoln Village
Apartment complex located in Ottawa, Illinois. The
dollar amount of its contract involving the apartment
complex is in excess of $150,000 of which in excess of
$50,000 represents indirect mflow from outside the
State of Illinois.
Frankfort Drywall Supply, Inc., herein called
Frankfort, is an Illinois corporation located in
Mokena, Illinois, where it is engaged as a drywall
supplier in the building and construction industry
218 NLRB No. 212
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Laborers and the Teamsters Locals 705 and 722 are
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
McClintock, the sheetrock contractor (drywall
construction) on the Lincoln Village Apartment
complex, subcontracted the purchase and the deliv-
ery (inside the building) of the sheetrock to Frank-
fort. Each piece of sheetrock weighs approximately
130 pounds, and the practice is for Frankfort to
deliver the sheetrock to the particular building where
the item is to be used through the use of a boom from
the back of the truck to either the ground outside the
building or, the more general practice, to a place
inside the building through a window. If the boom is
placed in the window to deliver the sheetrock, the
prongs cannot be removed until the load is distribut-
ed throughout the apartment so as to prevent the
collapse of the floor due to the weight of the load of
sheetrock. After the sheetrock is placed in location,
the practice has been for the employees on the
delivery truck to remove and distribute the sheetrock
from the truck to the various rooms of the apartment
for installation by carpenters. The employees of
Frankfort are members of the Teamsters Local 705.
However, Frankfort has no contract with the
Teamsters.
McClintock has had its sheetrock delivered by the
above method since its inception and wants to
continue to have the supplier deliver the sheetrock
from trucks to the various locations where it is used
in the apartment complex. The Laborers contends
that, while the employees represented by Teamsters
Local 705 on the delivery truck have jurisdiction of
the so-called first drop, after the sheetrock is
removed from the truck the Laborers has junsdic-
tion. McClintock does not have a contract with
either Teamsters Local 705 or the Laborers.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Work in Dispute
The work in dispute involves the unloading of
sheetrock from a truck boom which is placed in a
window or other entrance or area near an apartment
and the stacking of such product in each respective
apartment unit on the project in Ottawa, Illinois.
There is no dispute about the delivery of the
sheetrock to the apartment development.
C. Contentions of the Parties
The Laborers contends the work involved is work
which properly is within its jurisdiction, and work
which its members have customarily performed.
Representatives of Teamsters Local 705, or em-
ployees represented by that organization, did not
testify at the hearing. The employees represented by
Teamsters Local 705 continue to do the work.
Teamsters Local 722, which is based in Ottawa, but
does not represent any of the employees of Frank-
fort, disclaims the work.
McClintock and Frankfort contend that the assign-
ment of the work to the teamsters is more economical
and more efficient and that the teamsters possess the
experience and skills to do a more effective and
faster job, as the work involves part of one continu-
ous operation.
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 (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dispute.
In this case, it is undisputed that on March 10,
1974, the Laborers threatened to induce a work
stoppage unless its members were assigned the
disputed work. However, the Laborers has voluntari-
ly agreed not to engage in a work stoppage pending
the Board's adjustment of the dispute. Neither
McClintock nor Frankfort individually has a con-
tract with the unions involved nor are they members
of an association which has contracts with either
union . There is no evidence that they are bound by
Joint Board procedures or any other voluntary
method of settlement.
On the basis of the entire record, we find that there
is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
' Since Teamsters Local 722 does not represent any employees of
Frankfort , and has never sought the work in dispute , we find its disclaimer
irrelevant . On the other hand Local 705 has made no disclaimer or
expressed any position , and the employees represented by it continue to do
the work . In the circumstances we find that there has been no effective
disclaimer. Cf. Sheet Metal Workers ' International Association, Local 12,
is properly before the Board for determination.'
Further we conclude, inasmuch as the parties
involved have no contractual obligation, that there
exists no effective method for the voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Therefore, we are satisfied that there
is reasonable cause to believe a violation of Section
8(b)(4)(D) has occurred and that the 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 giving
consideration to various factors.2 The Board has held
that its determination in a jurisdictional dispute is an
act of judgment based on commonsense and experi-
ence reached by balancing those factors in a
particular case.3 The following factors are relevant in
making the determination of the dispute before us:
1. Certification and collective-bargaining
agreements
It is undisputed that a Board certification does not
cover the work in dispute. Neither McClintock nor
Frankfort has collective-bargaining contracts with
any of the unions involved herein. The Laborers
most recent contract is in evidence and, although
article XXXI provides for submission of work
disputes to the Impartial Jurisdictional Disputes
Board none of the other parties is bound by this
provision, nor did any one of them express any
inclination to utilize the IJDB in settling this dispute.
2. Employer and area practice
McClintock asserted that, in all cases in which it
has purchased sheetrock for installation, the order
included delivery within the building by the suppli-
er's own employees. In support of this assertion
McClintock listed some 10 to 12 suppliers in the area
where this practice has been followed. The Laborers,
on the other hand, introduced evidence that the
practice of a sister local in the area has been that
contractors have always agreed to assign work in
dispute to the laborers. It appears that area practice
is not conclusive and an insufficient basis to resolve
the dispute.
AFL-CIO, 203 NLRB 141, 142 (1973), and cases cited therein.
2 N.LR.B. v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U S 573 (1961)
3 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A. Jones Construction Company), 135 NLRB 1402 (1962)
LABORERS ' INTERNATIONAL UNION LOCAL 911 1391
3. Skills involved
Although the work involved is not skilled in a craft
sense, the record is undisputed that handling the
sheetrock , which weighs on the average 130 pounds a
piece and is brittle , requires experience in handling.
It is undisputed that the employees represented by
Teamsters Local 705 are experienced in performing
such work, and that their work product has been
satisfactory . There is no showing that the laborers
who would perform the work in dispute have had
prior experience . Furthermore , the potential for
damaging the sheetrock through improper handling
is high . In terms of experience and performance it
would appear that the employees who are represent-
ed by Teamsters Local 705 would be the preferred
employees.
4. Economy and efficiency
McClintock prefers having the employees of the
contractor from whom the sheetrock is purchased
make the distribution. In order for Frankfort to
guarantee the condition of the product, McClintock
was advised by Frankfort that Frankfort's employees
would have to make delivery. Moreover, prior
experience has shown that by using a supplier who
did not guarantee the product and who used laborers
the time involved in delivering increased from the
normal 1 -1/2 to 2 hours to over 7 hours. This has not
only increased the cost of delivery, but has increased
the cost of standby time for the carpenters and the
painters on the job , in some cases requiring sending
them home after giving them 4 hours showup time
while the laborers unloaded the product. The
Laborers does not dispute this contention advanced
by the Employers. Thus, the use of teamsters
employed by the contractor who supplies the
sheetrock would be more efficient and more econom-
ical. We therefore find that the efficiency and
economy factors favor the award to Frankfort's
employees represented by the Teamsters Local 705.
Conclusions
Having considered all the pertinent factors present
herein, we conclude that employees of Frankfort who
are represented by the Teamsters Local 705 are
entitled to perform the work in dispute. This
assignment is consistent with the initial assignment,
the experience and skill factor , and the efficiency and
economy of operation . In making this determination,
we are awarding the work in question to employees
employed by Frankfort who are represented by the
Teamsters , but not to that Union or its members.
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 represented by International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , Local 705, are entitled to
perform the work of unloading and delivery of
sheetrock from the truck boom and the stacking of
such product at the Lincoln Village Apartment
complex project in Ottawa , Illinois.
2. Laborers' International Union of North
America, Local 911 , is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require the assignment of the above work to its
members or to employees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers ' Interna-
tional Union of North America, Local 911, shall
notify the Regional Director for Region 38, in
writing, whether it will refrain from forcing or
requiring, by means proscribed by Section 8(b)(4)(D)
of the Act, the assignment of the work in dispute to
employees represented by the International Brother-
hood of Teamsters, Local 705, rather than employees
represented by the Laborers.