Laborers Local 1(Del Construction)

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 593 (N.L.R.B. 1987)

LABORERS LOCAL I (DEL CONSTRUCTION)
Laborers International Union of North America,
Local No. 1, AFL-CIO and DEL Construction
Company. ' Case 13-CD-384
31 August 1987
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
The charge in this 10(k) proceeding was filed 10
April 1987 by the Employer, DEL Construction
Company. The charge alleges that Laborers Inter-
national Union of North America, Local No. 1,
AFL-CIO (Laborers Local 1) violated Section
8(b)(4)(D) of the National Labor Relations Act by
threatening to engage in proscribed activity if the
Employer assigned the operation of the brick fork-
lift truck to members of International Union of Op-
erating Engineers, Local 150, AFL-CIO (Local
150). The hearing was held 30 April 1987 before
Hearing Officer Radine Legum. Thereafter, the
Employer, Laborers Local 1, and Local 150 each
filed a brief.
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.
1. JURISDICTION
The Employer, DEL Construction Company, is
an Illinois corporation with a principal place of
business in Downers Grove, Illinois, and is en-
gaged in the business of masonry construction at
various construction sites in Illinois. In the last cal-
endar year, the Employer purchased and received
at its Illinois construction sites products, goods,
and materials valued in excess of $50,000 from Illi-
nois enterprises that received such products, goods,
and materials directly from points located outside
the State of Illinois. During the same period of
time the Employer received gross revenues in
excess of $250,000. The parties stipulated, and we
find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that Laborers and Operating Engineers are
labor organizations within the meaning of Section
2(5) of the Act.
' The name of the Company appears as amended at the hearing Inter-
national Union of Operating Engineers , Local 150, AFL-CIO was the
party in interest in this proceeding
II. THE DISPUTE
593
A. Background and Facts of Dispute
The Employer is signatory to collective-bargain-
ing agreements with Operating Engineers Local
150 and Laborers Local 1.2 The former agreement
was signed by the parties in April 1984 and covers
brick forklift work. The latter agreement was
signed by the parties on 16 April 1987 and similarly
provides that brick forklift work will be assigned
to members of the Laborers.
About 10 March 1987 Giovannetti, the president
of the Employer, received a letter from the Labor-
ers' District Council president, Ernest Kumerow.
The letter, which was sent to "All Signatory Em-
ployers," stated, in pertinent part, that any reas-
signment of the operation of brick forklift trucks
"to any other Union is a breach of the Laborers'
Contract and will result in an immediate strike and
picketing by the Laborers to preserve the work ju-
risdiction."3 Giovannetti testified that he did not
respond to the letter because a "Laborer," Garrett,
was operating the Lull brick forklift truck at the
time he received the letter.
On 3 April 1987 the Employer, as masonry sub-
contractor at the Lane Plaza Shopping Center con-
struction site in Chicago,' Illinois, began its job at
the site ;of constructing exterior masonry bearing
walls and 2 days of interior work. At the time of
the hearing, the Employer employed eight individ-
uals at the Lane Plaza' site. Operation of the Lull
brick forklift truck, the work allegedly in dispute,
involves transporting scaffolding, mortar, brick,
and other materials from the staging area to the
wall structure under construction and lifting mate-
rials onto the scaffolding. At the time of the hear-
ing, a "laborer," Garrett, was operating the brick
forklift truck.
Local 150's business agent, Paddock, testified
that on 3 April 1987 he went to the Lane Plaza
Shopping Center construction site and asked Gar-
rett, who was then operating the brick forklift
truck, if he knew that, the machine he was operat-
ing should have been assigned to a member of
Local 150. Garrett stated that he knew that the
work belonged to the employees represented by
2 Peter Giovannetti is president and majority stockholder of the Em-
ployer Giovannetti testified that he owned G L Construction Co , a
masonry contractor, equally with George and Gus Lolos until late 1980
or early 1981 Giovannetti and the Lolos, thereafter, had a "parting of
the ways" and Giovannetti operated G L for a short time by himself G
L was dissolved and DEL was incorporated immediately thereafter.
Giovannetti testified that he was under the impression that DEL had had
an agreement with the Laborers and had made fringe benefit payments to
the Laborers on behalf of employees since 1981
a The parties stipulated that Kumerow acted as an agent on behalf of
Laborers Local 1 when he wrote the March letter
285 NLRB No. 75
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Operating Engineers and that he felt he should be
an "Operator."4 Paddock also spoke with two
other individuals, Jackson and Amwar, who were
assisting in the operation of the forklift truck.
Amwar informed Paddock that he had always be-
lieved that anyone assisting in machinery operation
should be represented by Local 150.
During a 3 April 1987 telephone conversation
with Giovannetti, Paddock stated that the brick
forklift truck work should have been assigned to a
member of the Operating Engineers, but Paddock
did not threaten a strike, picketing, or any job
action during this conversation or any subsequent
conversations with Giovannetti. Giovannetti told
Paddock about the letter he had received from the
Laborers and stated that Paddock should speak
with the Laborers' attorney.5
On 6 April 1987 Paddock returned to the Lane
Plaza site to take photographs and talk with em-
ployees, but he did not mention union representa-
tion at the time. During subsequent trips to the job-
site, Paddock asked whether Garrett, Amwar, and
Jackson would execute authorization cards for
Local 150, and all three employees signed authori-
zation cards.
On 6 April 1987 Giovannetti informed the La-
borers' business agent, Dilacova, that Paddock was
attempting to recruit employees who were mem-
bers of the Laborers. Dilacova stated that if Gio-
vannetti reassigned the work to Local 150, the La-
borers would picket.
On 21 April 1987 the Operating Engineers filed a
petition, supported by three authorization cards, for
a representation election. According to Paddock's
testimony, Local 150 does not object to the oper-
ation of the brick forklift truck by the Employer's
current employees, but claims that these employees
should be represented by Local 150. Giovannetti
testified that he wanted the same employees to
continue to perform the work allegedly in dispute,
but that he preferred that the operator of the brick
forklift truck be represented by the Laborers.
B. The Work in Dispute
The disputed work involves the operation of the
brick forklift truck at the Lane Plaza Shopping
Center construction site in Chicago, Illinois.
4 Prior to working for the Employer, Garrett worked as an operating
engineer on a hiring hall referral permit issued by Local 150
5 About 3 April 1987 Giovannetti contacted the Laborers' attorney
who advised Giovanneth to make a written assignment of the work to
the members of the Laborers On 5 April 1987 Giovanneth wrote a letter
assigning the brick forklift truck operation at Lane Plaza to the members
of the Laborers because he preferred to have the laborers continue to
perform such work
C. The Contentions of the Parties
Laborers Local I claims that its contract with
the Employer does not provide for any method of
voluntary resolution of jurisdictional disputes and
that it has threatened to strike and -picket if the
Employer reassigns the brick forklift work to
anyone other than a member of the Laborers. La-
borers Local 1 further claims that the Board should
award the work that is in dispute to the Laborers
because of the factors of, e.g., employer preference
and past practice, economy and efficiency of oper-
ations, area and industry practice, and relative skills
and safety. Laborers Local 1 additionally argues
that Board precedent supports this result and that
in view of the "continuing and recurring" nature of
the dispute the award should be applicable to all
projects of the Employer within the jurisdiction of
the Laborers' District Council of Chicago and Vi-
cinity.
Operating Engineers Local 150 contends that the
notice of hearing should be quashed.6 In support of
its motion to quash, Local 150 argues that the
present controversy is not a jurisdictional dispute
within the meaning of Section 10(k) of the Act.
The dispute is not between two groups of employ-
ees over which is entitled to perform certain work,
but rather between two unions seeking to represent
the same current employees of the Employer.
Thus, according to Local 150 the present contro-
versy involves a question concerning representation
rather than a 10(k) jurisdictional dispute.
Operating Engineers further claims that the pur-
ported threat to strike and picket by the Laborers
was a sham to invoke the Board's authority to de-
termine the dispute, and is inadequate to provide
reasonable cause to believe that Section 8(b)(4)(D)
has been violated. If, however, the Board should
find that a bona fide jurisdictional dispute exists,
Operating Engineers, contends that the work should
be awarded to those employees seeking representa-
tion by Local 150.
The Employer "does not want" members of the
Operating Engineers to operate the brick forklift
truck because, inter alia, they would perform no
work 25 to 50 percent of the time because the
brick forklift truck is the Employer's only onsite
machine and Local 150's collective-bargaining
agreement "prohibits" its members from doing any-
thing but operating machines. The Employer re-
quests that the work be awarded to the Laborers
on all the jobs the Employer performs in the coun-
ties of DuPage and Cook, Illinois, because the Em-
6 At the 30 April 1987 hearing, Local 150 moved to quash the notice
of hearing The hearing officer referred the motion to quash the notice of
hearing to the Board for ruling
LABORERS LOCAL I (DEL CONSTRUCTION)
player believes that this "inter -union dispute will
escalate into a more dangerous situation " unless the
Board resolves the matter generally.
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 . On the record before us, we are not satis-
fied that there is reasonable cause to believe that
any such violation has occurred.
Although Laborers Local I and the Employer
have framed the issues in terms of a work assign-
ment dispute , it is evident that the dispute is not
over the assignment of work to one group of em-
ployees rather than another within the meaning of
Section 8(b)(4)(D). Rather , as argued by Local 150,
the dispute involves the question of which Union
will represent the employees who are currently op-
erating the brick forklift truck . None of the parties
has raised any objection to the operation of the
brick forklift truck by the Employer's current em-
ployees . On the contrary , the Employer would like
to retain its current employees , but prefers that
they be represented by the Laborers . The Laborers
and Operating Engineers dispute only which Union
should represent the employees currently operating
the brick forklift truck at the Lane Plaza construc-
tion site.
595
It is well established that a dispute within the
meaning of Section 8(b)(4)(D) requires a choice be-
tween two competing groups.' In this regard, the
Board has stated:8
There must, in short, be either an attempt to
take a work assignment away from another
group, or to obtain the assignment rather than
have it given to the other group.
A demand for recognition as bargaining repre-
sentative for employees doing a particular job,
or in a particular department, does not to the
slightest degree connote a demand for the as-
signment of work to particular employees
rather than to others.
Thus, in light of the foregoing, we conclude that
the dispute here does not concern the assignment
of work to one group of employees rather than an-
other within the meaning of Section 8(b)(4)(D).
Accordingly, as this matter is not a dispute within
the meaning of Section 10(k), we shall quash the
notice of hearing.
ORDER
It is ordered that the notice of hearing issued in
this case is quashed.
' Food & Commercial Workers Local 1222 (FedMart Stores), 262 NLRB
817 (1982), Teamsters Local 222 (Jelco, Inc.), 206 NLRB 809 (1973)
8 FedMart Stores, supra, citing Communications Workers (Mountain
States Telephone), 118 NLRB 1104, 1107-1108 (1957)