Laborers Local 231

National Labor Relations Board - Board DecisionsJun 8, 1973

204 N.L.R.B. 37 (N.L.R.B. 1973)

LABORERS LOCAL 231 Laborers Local 231, a /w Laborers International Union of North America, AFL-CIO and C. Iber & Sons, Inc. Case 38-CD-95 June 8, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Stuart I. Cohen, attorney, for C. Iber & Sons, Inc., herein called the Employer, alleging that Laborers Local 231, a/w Laborers International Union of North America, AFL-CIO, herein called Local 231, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Michael B. Ryan at Peoria, Illinois, on February 27, 1973. The Employer and Local 231 appeared at the hearing and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter, briefs were filed by the Employer and Local 231. 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 rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER C. Iber & Sons, Inc., is an Illinois corporation with its principal place of business in East Peoria, Illinois. It is a general contractor engaged in the construction of commercial structures. During the past 12 months, a representative period, the Employer performed work valued in excess of $50,000 for customers out- side the State of Illinois. We find that the Employer is engaged in commerce within the meaning of the Section 2(6) and (7) of the Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. 11 THE LABOR ORGANIZATION INVOLVED Local 231 is a labor organization within the mean- ing of Section 2(5) of the Act. III THE DISPUTE 37 A. The Work in Dispute The notice of hearing described the work in dispute as: "work tasks in the material , equipment and supply yard area at the East Peoria , Illinois facility of C. Iber and Sons , Inc." At the hearing , Local 231 took the position that it claimed only contract coverage of yard work set out in its contract . The claim is based on its interpretation of the language in the Building Con- struction Agreement between it and the Employer. The Hearing Officer found that the disputed work, if any, consists of "the loading and unloading of trucks and cleaning and stacking of equipment in the storage yard located adjacent to the offices of the general contractor ." In its brief , the Employer states it has no objection to the Board making its determination based on the Union's definition of the work claimed. B. Background and Facts of the Dispute The Employer has had a contractual relationship with Local 231 for about 18 years. The parties stipu- lated that since 1955 contracts between them have contained language substantially similar to that in a provision of article 23 of the current contract, which Local 231 relies on in this proceeding. The provision states: General Laborers: All laborers in shipyard, ma- terial yards, junkyards, cemetaries in the cleaning of streets, ways and sewers, and all laborers work of an unskilled and semi-skilled nature. It is followed by a listing of various employee classifi- cations. Despite the contractual language, however, the Em- ployer has used unrepresented employees in its yard for at least the past 18 years. At the time of the hearing there were four full-time and three part-time unrepre- sented employees performing the miscellaneous work tasks at the Employer's home office facilities. Testi- mony at the hearing indicates a typical day for these employees starts out with loading trucks with material and equipment for building and construction projects located elsewhere in the area. After the trucks are loaded, the yard workers (1) straighten up the storage areas by stacking lumber and other materials and clean up and sweep inside the warehouse; (2) clean concrete forms by removing any concrete and, while doing so, they look for forms which have holes punched in them and stack them separately so that they can be repaired; (3) clean and maintain wheel- barrows and other smaller equipment, as well as tools, and clean urinals and toilets. At the end of the day when the trucks return to the warehouse area from 204 NLRB No. 18 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobsites , they unload them . They will also unload sup- pliers' trucks and receive materials being delivered. The work is of a continuing nature. In December 1972, Russell Erbaugh became Local 231's business manager . Local 231 contends he ob- served that all employees of Association employers doing certain yard work were covered by the contract except employees at the C . Iber & Sons , Inc., yard. Thereafter in meetings with representatives of the Employer , Local 231's representatives took the posi- tion that the work being performed at the Employer's .home facilities by the Employer 's unrepresented em- ployees belonged to Local 231. Business Agent Bill Shipp commented that it (the yard) would be a good place to put his older men . Local 23 l's representative also stated that , on certain days when work could not be carried on at the jobsite , laborers so employed could come down and work at the home office facili- ties. After some discussion , Local 231 representatives stated that the employees performing the work could continue to do so if they became members of Local 231. On January 15, 1973, Neil Tousley, the Employer's president , informed Erbaugh that the Company was taking the position that the contract did not cover the employees in the yard and therefore the Company would not agree to Local 231's demand. On the following day a picket was set up at the Employer's Illinois Central College project. The Lan- guage of the picket sign stated: Notice to Public , Laborers Local 231 on Strike against C . Iber & Sons , Inc. for violation of agreement . Employees of other employers are re- quested not to refrain from working. After picketing began, a meeting was held between the Employer and Local 231 at the local 's office. After some discussion regarding the Employer 's payments for pension and other fringe benefits , Erbaugh stated the yard facilities would be a good place for the local to place some of its older members . Although agree- ing at one point that the unrepresented employees could continue to do the work , Henry Gauwitz, busi- ness manager for the North Central Illinois Laborers District Council , with which Local 231 is affiliated, requested that the top man or men on the Union's referral list be paid for the time the nonunion employ- ees had been performing the work the Union was claiming . Erbaugh , referring to the disputed work, stated , "It is our work. Give us our work ." No agree- ment was reached at this meeting . On January 17, 1973, the Employer , by letter again informed Erbaugh its position was that the "Agreement with Tazwell Home Builders does not require that laborers be em- ployed to perform work of any kind at the Company's yard since it is a `building and construction' as op- posed to yard or warehouse , agreement." On January 22, 1973 , William J . Williams, the Employer 's job superintendent at the Illinois Central College jobsite , was approached by Fran Duesch, a Local 231 job steward . Duesch had observed a truck being loaded with material and equipment to return to the yard . He asked if a laborer would be sent along to unload the truck at the yard . When Williams re- plied in the negative , Duesch spoke to Erbaugh who then spoke to Williams . Williams then also told Er- baugh that he was not going to send a laborer with the truck. After his conversation with Williams , Erbaugh spoke to Tousley , mentioning the truck and telling him that , since there were not any laborers in the yard, the Employer would have to send one from the jobsite along with the truck to unload it once it got to the yard . When Tousley refused to agree to this , Erbaugh said , "I guess , then , we are at war ." Very shortly there- after , picketing of the Employer ' s home office oc- curred. The language of the picket sign stated: Notice to Public , C. Iber & Sons , Inc. is paying wages to Laborers on this site below standards established in this area by Laborers Local 231. This picket is informational. Employees of other employers are not requested to refrain from working or performing services. On the same day, the instant charge was filed and picketing ceased on January 24, 1973. Thereafter Lo- cal 231 requested arbitration of the matter and the Employer refused. C. Contentions of the Parties After its initial demand , Local 231 took the position that it did not care if the work was still assigned to the employees working in the yard but that those employ- ees were required by the terms of the contract to join the Union . In this regard , Local 231 argues that the issue is solely one of contract interpretation which can be handled through the arbitration provision of the contract . It further asserts that no jurisdictional dis- pute exists and that the 10(k) proceeding should be quashed. The Employer contends there is a jurisdictional dis- pute and that its contract with Local 231 has never been applied to employees at the home facility. With regard to arbitration , the Employer contends the arbi- tration procedure in the contract cannot be consid- ered an agreed-upon voluntary method for settling this dispute , since the unrepresented employees would not be entitled to representation at an arbitration hearing and , in any event , have not agreed to be bound by any determination made utilizing that pro- cedure. LABORERS LOCAL 231 39 D. Applicability of the Statute Before the Board may proceed to a determination 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 and that the parties have not agreed upon a method for voluntary adjustment of the dispute. The record indicates that at meetings with the Em- ployer in December 1972 union representatives claimed the disputed work, stating, inter alia, it would be good for older union members. Local 231 picketed the Employer on January 16 and from January 22 through 24, in each instance after having been refused the disputed work. Despite the fact that on some occa- sions Local 231 indicated it would no longer oppose assignment of the work to the unrepresented employ- ees, provided they joined the Union, we are convinced that the numerous statements by Local 231 regarding the disputed work show that Local 231's overall objec- tive was to secure the work for employees then repre- sented by it.' In view of the foregoing, based on uncontradicted testimony, we find that there is rea- sonable cause for believing that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination pursuant to Sec- tion 10(k) of the Act. In view of the fact that the unrepresented employ- ees constitute a "class" within the meaning of Section 8(b)(4)(D), and as they are not bound by the griev- ance procedure of Local 231's contract or any other procedures of voluntary settlement and by the fact that their performance of the disputed work indicates they claim it,2 there does not exist any agreed-upon method for voluntary adjustment of the dispute to which all parties are bound. Accordingly, the matter 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 disputed work after giving due consideration to the relevant factors in- volved.3 The following factors are relevant in making a determination of the dispute before us. 1 Thus, although the language of the picket signs suggested some objective other than a change in work assignment the record as a whole shows that the dominant object of Local 231 was to obtain the work for its present members 2 See Sheet Metal Workers Local Union No. 54 (The Goodyear Tire & Rubber Company), 203 NLRB No 21 3 International Association of Machinists, Lodge No 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 1. Employer assignment The Employer has assigned the work and prefers an assignment to its unrepresented employees, and they have performed the work in a satisfactory manner. These factors favor an assignment to the unrepresent- ed employees. 2. Skills required The evidence shows that the work at the yard re- quire absolutely no skills and can be performed by either group of employees. 3. Efficiency of operation The Employer claims that it is more efficient and economical to have its unrepresented employees per- form the disputed work. In this regard, the Employer notes that in addition to the disputed work the unre- presented employees perform such tasks as cleaning and sweeping the warehouse office, mowing grass, and maintaining the swimming pool. Inasmuch as Lo- cal 231 has expressed no interest in having its mem- bers do this work, the Employer claims that an award of the disputed work to Local 231 members would result in an unnecessary division of labor. We find that the factor of efficiency favors an award consis- tent with the Employer's assignment. - 4. Area and past practice Evidence as to area practice is mixed , indicating a mixture of unrepresented and represented employees performing work in storage yards and , favoring nei- ther group. The Employer has used unrepresented employees in its yard for the last 18 years. This past practice clearly supports the Employer's assignment. 5. Collective-bargaining agreements Local 231's contract with the Employer has a provi- sion covering, inter alia, "material yards" and it is this provision that Local 231 relies on in claiming contract coverage of the yard work. The Employer contends that the contract does not specifically cover the dis- puted work since it is a building and construction agreement covering work performed at a construction site and that the disputed work is not being carried on in connection with any specific construction project, but rather it enables the Employer to get its warehous- ing, janitorial, and maintenance work done. To sup- port this argument, the Employer presented testimony by the chairman of the Association's negotiating com- 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee to the effect that, during the negotiation of the contract, the only discussion about "material yards" dealt with "boneyards" which are storage areas that are used to store construction material at each specific site . Additionally, the Employer states that, despite the "material yards" provision having been in all agreements since 1955, it was not until December 1972 that Local 231 first contended the contract was applicable to the work in dispute. On the basis of the foregoing, notwithstanding Lo- cal 23 l's contentions , we find that the contract does not unambiguously cover the disputed work so as to be regarded as a significant factor. Conclusions Having considered all the pertinent facts, we con- clude that the Employer's unrepresented employees are entitled to perform the work in dispute. We note that the Employer bas assigned the work to them and is satisfied with their performance, and the resulting efficiency of operations, and the assignment is consis- tent with the Employer's preference and past practice. Our present determination is limited to the particular controversy which gave rise to this preceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determi- nation of Dispute: 1. The Employer's unrepresented employees are entitled to perform the work of loading and unloading of trucks and cleaning and stacking of equipment in the storage yard located adjacent to the office of the general contractor at its home office in East Peoria, Illinois. 2. Laborers Local 231, a/w Laborers International Union of North America, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign 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, Local 231, a/w Labor- ers International Union of North America, AFL- CIO, shall notify the Officer-in-Charge for Subregion 38, in writing, whether it will or will not refrain from forcing or requiring the Employer, by means pros- cribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than the unrepresented employees.