Laborers', Local 373

National Labor Relations Board - Board Decisions

Apr 21, 1976

223 N.L.R.B. 1014 (N.L.R.B. 1976)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America, Con-
struction and General Laborers Local 373, AFL-
CIO and Reicher Building Company, Inc.
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania, AFL-CIO and Reicher Building
Company, Inc. Cases 6-CD-580-1 and 6-CD-
580-2
April 21, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing charges filed by Reicher Building Company, Inc.,
herein called the Employer, alleging that Laborers'
International Union of North America , Construction
and General Laborers Local 373, AFL-CIO, herein
called the Laborers , and United Brotherhood of Car-
penters and Joiners of America , Carpenters District
Council of Western Pennsylvania , AFL-CIO , herein
called the Carpenters, had violated Section
8(b)(4)(D) of the Act . The charges allege, in sub-
stance, that the Laborers and the Carpenters, by
threats of economic action and by economic action,
violated the Act since one of the purposes of such
conduct was to force the Employer to assign certain
work to their members respectively rather than to
members of the other labor organization . Pursuant to
notice, a hearing was held in Pittsburgh , Pennsylva-
nia, before Hearing Officer Matthew M . Frankiewicz
on January 19, 1976 . All parties appeared and were
afforded full opportunity to be heard , to examine
and cross-examine witnesses , and to present evidence
bearing on the issues . Thereafter , none of the parties
filed briefs.
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 , the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, a Pennsylvania corporation with
principal offices located in Pittsburgh , Pennsylvania,
is engaged in the building and construction industry.
The parties stipulated , and we find , that during the
past year the Employer received goods valued in ex-
cess of $50,000 directly from sources outside the
Commonwealth of Pennsylvania.
We find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the
Act to assert jurisdiction.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that the Labor-
ers and the Carpenters are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in the building and con-
struction industry and is currently constructing an
office building for the Water Authority of the munic-
ipality of West View , Pennsylvania . In the course of
such construction , when pouring cement for a build-
ing, forms made from metal pans and lumber are
used to give structural strength to the concrete which
makes up the roof and floor of the building. After the
concrete has been spread in the forms and has hard-
ened, the forms are taken down , stripped, and
cleaned and either used again on the jobsite, sent
elsewhere for use on other sites, or returned to the
owner if the materials are rented.
At the Employer's West View jobsite , employees
represented by the Carpenters assemble the forms, a
composite crew of laborers , carpenters, and other
workers pours the cement into the forms , and labor-
ers then spread the concrete in the forms . After the
cement has hardened , the forms are stripped-a pro-
cess in which the pans and lumber which have made
up the forms are dismantled , the pans are straight-
ened out, cleaned of concrete , and oiled , and the
nails are pulled out of the lumber . After the cleaning,
laborers carry the forms to the location where they
will next be used. If the forms are to be reused at that
same jobsite , carpenters reassemble them.
This stripping of forms was the subject of a 1949
agreement between the Carpenters and the Laborers
in which they agreed that employees represented by
the Carpenters would do the stripping of forms
which were to be reused and employees represented
by the Laborers would do the stripping of forms
which were not to be reused. At its West View site,
the Employer assigned the final stripping to employ-
ees represented by the Laborers . Laborers had per-
223 NLRB No. 148
LABORERS ', LOCAL 373
formed the final stripping work for 3 days. However,
the carpenters refused to work until the work was
assigned to them. The laborers then threatened to
strike if the final stripping was reassigned to employ-
ees represented by the Carpenters. After the Employ-
er agreed to stop all the stripping work, the carpen-
ters returned to their jobs. Since then, an interim
agreement has been reached whereby the work is per-
formed by a composite crew made up of laborers and
carpenters.
B. The Work in Dispute
The work in dispute involves the final stripping,
from concrete, of wooden forms and metal pans
which are not to be reused at the West View jobsite.
C. Contentions of the Parties
The Employer contends that the disputed work
should be assigned to laborers because the contract
between the Employer and the Laborers awards the
work to those employees and because of economic
factors.
The Laborers similarly contends that the disputed
work should be awarded to employees it represents,
based on the contract between it and the Employer
awarding them the work. It further argues that the
1949 agreement between the Laborers and the Car-
penters under which final stripping work is to be
done by laborers dictates that the work be awarded
to employees represented by it.
The Carpenters position is that the disputed work
is not the final stripping of forms which are not to be
reused at the jobsite, but stripping of forms which are
to be reused. Consequently, the Carpenters contends
that the work should be assigned to employees repre-
sented by it.
D. Applicability of the Statute
The charges herein allege violations of Section
8(b)(4)(D) of the Act. The record shows that the Em-
ployer assigned the disputed work to its employees
who are represented by the Laborers. On the first day
that the laborers were performing the work, the car-
penters stopped work and thereafter were sent home.
The following day the carpenters appeared at the
jobsite but did not leave their trucks and did not
work. The Carpenters business agent told the Em-
ployer that the carpenters would not work as long as
the laborers were doing the stripping, and the Em-
ployer then agreed to suspend the stripping opera-
tion. Following this suspension of the stripping, the
parties met to discuss the assignment of the work. At
1015
this meeting the Laborers business agent threatened
a strike by the laborers if the Employer should reas-
sign the stripping work to employees represented by
the Carpenters. No agreement was reached between
the parties as to how the work might continue. Thus,
in view of the work stoppage by the Carpenters and
the .threats of work stoppage by both the Carpenters
and the Laborers, we find that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated.
On January 8, 1976, the Employer and the Carpen-
ters agreed that a composite crew would perform the
disputed work. While the Laborers was not a party to
this agreement, it subsequently agreed that a com-
posite crew would temporarily perform the work.
Thus, the parties have stipulated, and we find, that
no permanent agreement has been reached in the dis-
pute. In addition, there is no evidence that the parties
have agreed upon a method for the voluntary adjust-
ment of the dispute. Accordingly, the matter is prop-
erly before the Board for determination under Sec-
tion 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 the disputed work af-
ter giving due consideration to all relevant factors.
The following factors are relevant in making a deter-
mination of the dispute before us:
1. Certifications and collective-bargaining
agreements
Neither the Laborers nor the Carpenters has been
certified by the Board as a collective-bargaining rep-
resentative in a unit of the Employer's employees.
The record shows that the Employer and the La-
borers are parties to a current collective-bargaining
agreement which includes the disputed work within
its jurisdictional clause.' The Employer is not a party
to a collective-bargaining agreement with the Car-
penters. The Carpenters does have a collective-bar-
gaining agreement with D&R Carpentry, a subcon-
tractor for the Employer, but this agreement does not
address itself to the assignment of the disputed work.
The record also shows that in 1949 the Laborers
and Carpenters entered into an agreement under
1 Art. IV, sec. 2, "THE LABORERS' JURISDICTION," reads in part as
follows:
(e) The stripping of forms, other than panel forms which are to be
reused in their original form and the stripping of, forms on all flat arch
work.
The moving, cleaning, oiling , and carrying of all forms to the next
point of erection.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the work of stripping forms to be reused is to
be the work of employees represented by the Carpen-
ters, while the moving, cleaning, oiling, and carrying
of the forms to the next point of erection, and the
stripping of forms which are not to be reused, is to be
the work of employees represented by the Laborers.
As the work in dispute involves final stripping of
forms not to be reused, we find that the Employer's
contract with the Laborers, and the 1949 agreement
between the competing unions, favor the Laborers'
claim to the work.
2. Employer's assignment and past practice
Conclusion
Upon the entire record in this proceeding and after
full consideration of all of the relevant factors, in
particular the Employer's collective-bargaining
agreement with the Laborers, the 1949 agreement be-
tween the Laborers and the Carpenters, and the la-
borers' skill with an air chisel, we conclude that the
employees of the Employer who are represented by
the Laborers are entitled to the work in question, and
we shall determine the dispute in their favor. In mak-
ing this determination, we award the work to the em-
ployees of the Employer who are represented by the
Laborers but not to that labor organization or its
members.
Pursuant to article IV, section 2 of its current
agreement with the Laborers, the Employer assigned
the disputed work to its employees represented by
the Laborers.
The Employer testified that it had no knowledge as
to how the work had been assigned in the past on any
of its projects, but that the consensus among area
contractors was that the work could be assigned to
either laborers or carpenters. We therefore find that
the factors of area and employer past practice do not
favor an award to either group of employees.
3. Skills
The Employer favors an award to its employees
represented by the Laborers. The skills involved in
stripping appear to be skills which are learned on the
job and not skills which require special training or
instruction. Thus, the stripping work done by both
groups of employees is essentially the same, differing
only in whether it is intermediate or final stripping.
Furthermore, all parties agree that both laborers and
carpenters possess the skills necessary for the work.
However, the record shows there is a difference be-
tween laborers and carpenters in the use of the air
chisel, a tool sometimes used to chip away concrete
from the pans. Only laborers use the air chisel. Ac-
cordingly, the laborers' skill with an air chisel favors
an award to employees represented by the Laborers.
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees employed by Reicher Building
Company, Inc., who are represented by Laborers Lo-
cal 373, AFL-CIO, are entitled to perform the final
stripping, from concrete , of wooden forms and metal
pans which are not to be reused at the jobsite at the
Employer's West View Authority job at 210 Perry
Highway , Pittsburgh , Pennsylvania.
2. United Brotherhood of Carpenters and Joiners
of America , Carpenters District Council of Western
Pennsylvania , AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Reicher Building Company , Inc., to assign
the above work to employees represented by United
Brotherhood of Carpenters and Joiners of America.
3. Within 10 days from the date of this Decision
and Determination of Dispute , United Brotherhood
of Carpenters and Joiners of America , Carpenters
District Council of Western Pennsylvania, AFL-
CIO, shall notify the Regional Director for Region 6,
in writing, whether or not it will refrain from forcing
or requiring Reicher Building Company , Inc., by
means proscribed by Section 8(b)(4)(D), to assign the
work in dispute in a manner inconsistent with the
above determination.