Laborers Local 721 (Hawkins & Sons)

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1246 (N.L.R.B. 1988)

1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local No. Union 721, Laborers' International Union
of North America, AFL-CIO and H. H. Haw-
kins & Sons Company and United Brotherhood
of Carpenters and Joiners of America, AFL-
CIO, Local 424
J. F. White Contracting Company and United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local 624
Freeman Concrete Construction Co. and United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local 424, Cases 1-CD-
812, 1-CD-813, and 1-CD-815
May 31, 1988
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
The charges in this Section 10(k) proceeding
were filed August 11, 14, and 28, 1987, 1 respective-
ly, by three Employers, alleging that the Respond-
ent, Laborers Local 721 (Laborers), violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object
of forcing these Employers to assign certain work
to employees it represents rather than to employees
represented by Carpenters Locals 424 and 624
(Carpenters). The hearing was held September 21
before Hearing Officer Robert P. Redbord.
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 fmd-
ings.
I. JURISDICTION
The Employers, H. H. Hawkins & Sons Compa-
ny (Hawkins), a Massachusetts corporation, J. F.
White Contracting Company (White), a Massachu-
setts corporation, and Freeman Concrete Construc-
tion Co. (Freeman), a sole proprietorship, are en-
gaged in business in the construction industry in
the Commonwealth of Massachusetts. Each Em-
ployer purchases goods and materials in excess of
$50,000 at its Massachusetts location directly from
points located outside the Commonwealth of Mas-
sachusetts. The Employers and Carpenters stipu-
late, and we find, that the Employers are engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Laborers 2 and the
AB dates are 1987 unless indicated otherwise.
2 Laborers Local 721 did not appear at the hearing nor submit a brief,
however, m Laborers Local 721 (Bechtel Construction), 277 NLRB 1438
Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Hawkins Case: The Employer is the general
contractor for the construction of a dining hall at
the Arnold Hall Conference Center in Pembroke,
Massachusetts. The foundation for the dining hall is
erected by pouring concrete into metal and wood
panel forms. The forms are assembled and set in
place to shape the walls of the foundation by em-
ployees represented by the Carpenters. The con-
crete is then poured into the form and, after the
concrete has "cured" and attained sufficient
strength, the form is removed or stripped from the
hardened concrete. The forms are then cleaned and
kept for reuse.
To perform the work at the Arnold Hall site, the
Employer hired employees from several building
trades, including laborers represented by Laborers
Local 721 and carpenters represented by Carpen-
ters Local 424. The Employer, by virtue of its
membership in Associated General Contractors of
Massachusetts (AGC), has current collective-bar-
gaining agreements with the Laborers and the Car-
penters.
The Employer's job superintendent, John
McKinnon, testified that prior to the erection of
the first concrete form the business manager for
Local 721, Louis Palavanchi, demanded that 50
percent of the stripping of concrete forms be per-
formed by laborers. Kurt Fordyce, business manag-
er for Local 424, demanded 100 percent of the
stripping work for carpenters. On August 7, the
Carpenters' agent visited the jobsite to provide
McKinnon with a copy of the Carpenters' agree-
ment with AGC. On the same day, the Laborers'
agent visited the jobsite with several letters from
area contractors in support of his claim that 50 per-
cent of the stripping of concrete forms had been
performed by laborers on their projects. Palavanchi
did not, however, bring with him a copy of the La-
borers' agreement with AGC as McKinnon had re-
quested. McKinnon testified that he explained it
was necessary for him to review both agreements
before he could make the proper work assignment
with respect to the stripping of the concrete. Pala-
vanchi's language and tone then became abusive
and he shouted to the Laborers' steward, William
Faelten, to remove all laborers from the project.
The laborers walked off the jobsite and gathered at
(1986), the Board previously determined that Laborers Local 721 is a
labor orgaruzation within the meaning of Sec. 2(5) of the Act.
288 NLRB No. 142
LABORERS LOCAL 721 (HAWKINS & SONS) 1247
Palavanchi's automobile where they were given
picket signs. A picket line was established at the
entrance of the project on Friday, August 7, and
the picketing continued until Wednesday, August
19, when the laborers returned to work. No labor-
ers performed work or reported for work on the
jobsite from August 7 through 19.
The White Case: The Employer is the general
contractor for the construction of a $5 million
bridge over Conrail tracks at Plain Street in Brock-
ton, Massachusetts. The structure supporting the
bridge is formed by pouring concrete into metal
panel forms that are assembled and set in place by
employees represented by the Carpenters. After the
concrete has set for several days and attained suffi-
cient strength, the metal forms are removed from
the concrete, which then becomes architecturally
exposed. The forms are then cleaned and kept for
reuse.
In the early summer of 1987, Palavanchi advised
the Employer that the Laborers claimed the work
relating to the stripping of the concrete forms on
the Brockton project. The Employer responded
that its practice was to assign that work to carpen-
ters. When the work of stripping the forms from
the concrete began, the Employer assigned it to
employees represented by the Carpenters and em-
ployees represented by the Laborers engaged in a
work stoppage. A few days after the Laborers
began its strike, at a meeting between the Employ-
er, Palavanchi, and representatives from the Labor-
ers' District Council and the International Union,
Local 721 repeated its claim to the work of strip-
ping the forms from the concrete. The parties
reached a compromise during this meeting where-
by the laborers were given the additional work of
carrying the materials from the stockpile area to
the erection site, but the carpenters would continue
to set up the forms and strip them from the con-
crete. The laborers returned to the jobsite as a
result of this compromise.
Additional concrete stripping work was again
performed in late August, and assigned to employ-
ees represented by the Carpenters. The Laborers
again engaged in a work stoppage. At a meeting
that followed, Laborers' business manager Palavan-
chi again claimed that the work in dispute should
be assigned to laborers instead of carpenters. When
the work assignment issue was not resolved during
the meeting, Palavanchi stated he would show the
"power" of Local 721. Palavanchi left the meeting
and went out to the striking laborers who immedi-
ately began to carry picket signs at the entrance to
the jobsite. This picketing continued until the Em-
ployer petitioned a United States district court and
obtained a temporary restraining order.3
The Freeman Case: The Employer is a subcon-
tractor to William Berry & Sons, Inc., the general
contractor for the construction of an additional
structure to the Holy Family Church facility in
Duxbury, Massachusetts. Freeman was awarded
the contract to build the foundations to the new
structure. The job consists of excavating the areas
for the foundations, assembling and placing
wooden panel forms, supervising the pouring of the
concrete into the wooden forms, and later remov-
ing the forms from the hardened concrete. The
forms are then cleaned and kept for later use.
During the second week of August, a major con-
crete pour had been scheduled. The work of strip-
ping the forms from the concrete was assigned to
employees represented by the Carpenters and when
they began the work, employees represented by the
Laborers also began stripping the forms from the
concrete. The owner of Freeman advised the labor-
ers to cease performing the stripping work, but the
Laborers' steward replied that if the carpenters did
stripping work, the laborers would also. As a result
of this confrontation, the stripping work was dis-
continued that day.
On August 13 and 14, when employees repre-
sented by the Carpenters attempted to perform the
stripping work assigned to them by the Employer,
the laborers, once again, attempted to perform this
work. The same scenario was repeated on August
17, and the Employer told the Laborers that if the
employees they represented did not cease perform-
ing the stripping work they would be terminated.
The Laborers' steward then directed the laborers
to leave the jobsite. At a meeting later that after-
noon with the Employer, Palavanchi claimed that
50 percent of the work of removing the forms from
the hardened concrete must be performed by labor-
ers. The Employer refused to change the prior as-
signment to employees represented by the Carpen-
ters. Palavanchi then directed the steward to posi-
tion pickets at the two entrance ways to the jobsite
where the ready-mix concrete trucks entered. The
pickets were established and remained at these two
entrances until August 25. During the course of the
strike, the number of pickets increased from 6 to
20, 10 at each of the 2 entrances. The picketing
blocked the entranceways to the project.
3 After the Federal district court issued a temporary restraining order
enjoining further picketing by Laborers Local 721, an action was filed
with the American Arbitration Association protesting the assignment of
the work of stripping the forms from the concrete on the J. F. White
Brockton bridge project to the Carpenters. The arbitration proceeding
was suspended by the arbitrator pending resolution of the dispute by the
Board.
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Work in Dispute
The work in dispute in all three cases consists of
the stripping of concrete forms (wood or metal) at
the Hawkins' Arnold Hall Conference Center
dining hall jobsite in Pembroke, Massachusetts, the
White bridge project in Brockton, Massachusetts,
and the Freeman project in Duxbury, Massachu-
setts, where Freeman is a subcontractor to William
Berry & Sons, Inc., at the Holy Family Church
building construction project.
C. Contentions of the Parties
All of the Employers contend that the evidence
of work stoppages and picketing constitutes reason-
able cause to believe that Section 8(b)(4)(D) has
been violated. White and Freeman also argue that
the Laborers' pursuit of a claim to the disputed
work in a bilateral arbitration is also reasonable
cause to believe that Section 8(b)(4)(D) has been
violated. The Employers contend further that the
disputed work should be awarded to employees
represented by the Carpenters for the following
reasons: (1) the Employers' uniform practice in the
eastern Massachusetts area, as well as the practice
throughout the building and heavy and highway
construction industry in eastern Massachusetts, is to
assign the work to carpenters; (2) the Employers
are satisfied with the skills and ability of the car-
penters to perform the work in a safe and efficient
manner; (3) the carpenters assemble and erect the
forms and consequently possess greater skill in re-
moving them without causing substantial damage
either to the forms, which are reusable, or to the
architecturally exposed concrete; and (4) if the
work is reassigned either to a composite crew or to
a crew of laborers, the Employers would be forced
to maintain separate crews, without full work for
those separate additional crews, resulting in a lack
of efficiency and productivity on the various
projects.
The Employers also contend that the Board
should render an areawide determination prohibit-
ing Laborers Local 721 from engaging in prohibit-
ed activity designed to force and coerce Employers
to reassign the work in dispute to employees repre-
sented by the Laborers instead of carpenters.
The Carpenters agrees with the Employers' con-
tentions stressing that the assignments to the em-
ployees represented by the Carpenters are consist-
ent with area practice and with its collective-bar-
gaining agreements with the Employers.
Laborers Local 721 neither appeared. at the hear-
ing nor submitted a brief regarding its position on
the work in dispute.
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 there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute.
Section 8(b)(4)(D) proscribes, inter alia, strikes
with an object of forcing or requiring any employ-
er to assign particular work to employees in a par-
ticular labor organization rather than to employees
in another labor organization. In each of the instant
cases, there is evidence that the Laborers engaged
in work stoppages and picketed the Employers'
jobsite in furtherance of its demand that the disput-
ed work be reassigned from employees represented
by the Carpenters to employees represented by the
Laborers. Accordingly, we find that reasonable
cause exists to believe that a violation of Section
8(b)(4)(D) has occurred. 4 Additionally, no party
contends, and there is no evidence demonstrating,
that an agreed-on method for the voluntary adjust-
ment of the instant disputes exists. We therefore
fmd that these disputes are properly before the
Board for a determination under Section 10(k) of
the Act.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative 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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence of Board certification con-
cerning the employees of the Employers. Each
Employer, however, is signatory to collective-bar-
gaining agreements with both the Carpenters and
Laborefs, either through membership in AGC or as
a signatory to the AGC agreement with one of the
local unions or through membership in the Labor
4 In light of this conclusion, we find it unnecessary to pass on White
and Freeman's additional contention that the Laborers' pursuit of arbitra-
tion provides reasonable cause to believe Sec. 8(b)(4)(D) has been violat-
ed.
LABORERS LOCAL 721 (HAWKINS & SONS) 1249
Relations Division of Construction Industries of
Massachusetts (LRDCIM). In all instances, the
Carpenters' agreements specifically include the dis-
puted work while the Laborers' agreements ex-
clude it. Thus, article I of the Carpenters' AGC
agreement, to which all three Employers are par-
ties, provides that the "stripping of all forms used
in concrete work" is to be performed by carpen-
ters. On the other hand, appendix A, paragraph (e),
of the Laborers' AGC agreement, to which Haw-
kins and Freeman are parties, provides for "the
stripping of forms, other than panel forms which
are to be reused in their original form," and the
Laborers' heavy and highway agreement, to which
White is a party as a member of LRDCIM, similar-
ly excludes the work of stripping "panel forms
which are to be reused in their original form."
In view of the above express provisions, the col-
lective-bargaining agreement factor in each case
supports the assignment of the disputed work to
employees represented by the Carpenters.
2. The Employers' past practices
The record in all three cases shows that it is the
Employers' policy within the eastern Massachusetts
area to assign the disputed work to employees rep-
resented by the Carpenters. John McKinnon of
Hawkins, and representatives from both White and
Freeman testified without contradiction that the as-
signment to carpenters of stripping forms from
concrete on their respective jobsites is consistent
with their past practices. The factor of past prac-
tices for each of the Employers involved in this
proceeding, therefore, supports the assignment of
the disputed work in each case to the employees
represented by the Carpenters.
3. Area practice
The testimony of Hawkins' representative, as
well as the testimony of the representatives from
White and Freeman, was that to their knowledge
other contractors in the eastern Massachusetts area
assign the work of stripping forms from concrete
to employees represented by Carpenters and not to
employees represented by Laborers. Representa-
tives of the Carpenters Union as well as a repre-
sentative of AGC also testified that the uniform
practice of the contractors and members of AGC
in the eastern Massachusetts area is to assign the
work in dispute to Carpenters. Therefore, the
factor of area practice favors awarding the disput-
ed work to employees represented by Carpenters
and not to employees represented by Laborers.
4. Relative skills, efficiency, and economy
Each Employer presented the following evi-
dence regarding the relative skills, efficiency, and
economy involved in stripping the concrete forms:
(a) With respect to the skill factor, great care is
necessary in removing the forms from exposed ar-
chitectural concrete so that the concrete is not
damaged in the process. It is also essential that the
panels not be damaged during the removal process
because they are reusable and very expensive to re-
place. The metal forms, for example, are valued at
approximately $10,000 each. The evidence estab-
lishes that employees represented by the Carpen-
ters are better suited to perform this work because
of their experience in working with the tools used
to erect and dismantle the panel forms, and because
they erected the panel forms in the first instance
and therefore know better how to disassemble
them. No evidence was presented in behalf of la-
borers regarding their experience or skills in per-
forming the disputed work.
(b) With respect to economy of operations, each
Employer testified it would be expensive and ineffi-
cient in its overall operation to assign even a part
of the stripping work to Laborers-represented em-
ployees. To begin with, the tools used in perform-
ing the disputed work—specifically a hammer, flat
bar, pry bar, open-end wrench, adjustable wrench,
catspaw, and screwdriver—are traditional carpen-
ter tools that the carpenters individually own and
which laborers do not possess; these tools, there-
fore, would have to be supplied by the Employers
if employees represented by the Laborers were
awarded the work in dispute. More importantly,
Carpenters-represented employees are proficient in
many facets of the Employers' operations and are
used in all phases of the construction of a building
or other structure. This is not true of Laborers-rep-
resented employees. White and Freeman presented
testimony that if the disputed work were assigned
to Laborers-represented employees, the Employer
involved would not be able to integrate the general
work of Carpenters-represented employees with
the disputed work. Instead, the Carpenters-repre-
sented employees would not have a full schedule of
available work for a certain portion of the work-
day and Laborers-represented employees would
also not have a full workday. Thus the additional
Laborers-represented employees hired for the dis-
puted work would be surplus to the project. Haw-
kins presented testimony that if the Employer in-
volved is forced to assemble a composite crew
composed of an equal number of Laborers-repre-
sented employees and Carpenters-represented em-
ployees, certain Carpenters-represented employees
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would have to be laid off. A layoff would jeopard-
ize the Employer's ability to rehire the same em-
ployees because they could be hired by other con-
tractors during their layoff. This would adversely
affect the Employers' need to have a steady work
force of Carpenters-represented employees
throughout the life of the project.
We fmd that the factors of relative skills, effi-
ciency, and economy support the Employers' as-
signments of work to their employees represented
by the Carpenters.
5. Safety considerations
White and Freeman asserted without contradic-
tion that the panels for the forms are hoisted into
place at high levels and are extremely heavy. 5 If
workers who are unfamiliar and unskilled with the
process are assigned to strip the forms from the
concrete or hoist the materials down, they could
not only damage the forms or the architecturally
exposed concrete, but could also cause injury to
other workers and pedestrians in the area. As noted
earlier, the Laborers neither appeared at the hear-
ing nor submitted a brief. The assertions of White
and Freeman that the factor of safety consider-
ations favors an award to the Carpenters-represent-
ed employees is therefore uncontradicted, and we
fmd that the safety factor favors an award of the
disputed work at the White and Freeman projects
to employees represented by the Carpenters.
Conclusions
After considering the relevant factors in all three
cases, we conclude that employees represented by
Carpenters Locals 424 and 624 are entitled to per-
form the work in dispute. We reach this conclusion
relying on the facts that the Employers' collective-
bargaining agreements with the Carpenters specifi-
cally refer to the assignment of the disputed work
to the Carpenters-represented employees, that such
an assignment is consistent with the Employers'
past practices and with the practice of other con-
tractors in the eastern Massachusetts area, and that
the Carpenters-represented employees possess the
requisite skills to perform the work and the assign-
ment of the work to them will result in greater effi-
ciency and economy of operations. Furthermore, in
the cases of White and Freeman, safety consider-
ations favor an award of the work in dispute to the
Carpenters-represented employees.
In making this determination, we are awarding
the work in dispute to employees who are repre-
sented by Carpenters Locals 424 and 624 but not to
these Unions or their members.
s Hawkins made no assertions concerning the factor of safety
Scope of the Award
The Employers argue in their briefs that "where
the evidence indicates that the work in dispute has
been a continuous source of controversy in the rel-
evant geographic area and that similar disputes
may occur and there is also evidence demonstrat-
ing a definite proclivity on the part of one of the
rival unions to engage in further unlawful conduct
in order to obtain the assignment of the disputed
work, Board's [sic] policy has been to enter a
broad area-wide determination." They contend
that an areawide determination is appropriate here.
We agree that the scope of the determination of
this dispute should encompass future projects of
the Employers where the geographical jurisdictions
of Locals 424 and 624 of the Carpenters coincide
with that of Local 721 of the Laborers.
The evidence in this consolidated proceeding
shows that on five separate occasions during
August and September, the Laborers engaged in
work stoppages and picketing to protest the assign-
ment of stripping forms from concrete to employ-
ees represented by the Carpenters. This conduct
occurred at three separate sites involving three dif-
ferent Employers. Evidence was also presented
that the Laborers engaged in a work stoppage re-
garding the same work in dispute herein at a
project of the Bonfitti Company in the Brockton
area and against the Cleary Company in Bridge-
water, Massachusetts. In addition, the carpenters'
business agent in Brockton testified that the Labor-
ers engaged in this type of proscribed activity over
jurisdictional disputes with the Carpenters on a
weekly basis. 7 Testimony was also adduced at the
hearing indicating that a large number of projects
involving the disputed work are scheduled in the
next few years in the eastern Massachusetts area
and that contractors like Freeman are concerned
about bidding for the work because of the likeli-
hood of delay and expense of strike action by the
Laborers. As noted above, the Laborers did not
appear at the hearing or file a brief and thus the
evidence concerning its activity stands uncontra-
dieted.
Based on the above evidence, we find that the
prerequisites for the issuance of a determination of
dispute extending beyond the three affected jobsites
have been met here. Thus the evidence that the
6 See, e g., Laborers Local 146 (Modern Acoustics), 267 NLRB 1123
(1983); Electrical Workers IBEW Local 3 (Northern Telecom), 262 NLRB
1453 (1982).
7 A recent Board decision in the case of Laborers Local 721 (Bechtel
Construction), 277 NLRB 1438 (1986), shows similar proscribed activity
by the Laborers over the assignment of the installation of the forms for
concrete (as opposed to the stripping of the forms which is at issue in the
instant case).
LABORERS LOCAL 721 (HAWKINS & SONS) 1251
Laborers have engaged in similar conduct concern-
ing, inter alia, the disputed work shows that the
stripping of forms has been a continuous source of
controversy in the eastern Massachusetts area, and
that similar disputes may recur because future
projects involving the disputed work have been
scheduled in that area. The Laborers' conduct in
striking five separate employers in August through
September over the disputed work demonstrates a
proclivity on its part to engage in such conduct to
obtain work similar to that in dispute. Under all the
circumstances, therefore, the activity engaged in by
the Laborers justifies the entry of a determination
covering all construction projects of the Employers
falling within the geographic boundaries of Labor-
ers Local 721. Accordingly, our award of the dis-
puted work shall cover stripping of forms on all
construction sites of the Employers where the geo-
graphical jurisdictions of the Laborers and the Car-
penters coincide.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of H. IL Hawkins & Sons Compa-
ny who are represented by United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,
Local 424 are entitled to perform. the stripping of
forms from the concrete at all construction sites
where the geographical jurisdictions of Local
Union No. 721, Laborers' International Union of
North America, AFL-CIO and United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, Local 424 coincide.
2. Employees of J. F. White Contracting Com-
pany who are represented by United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
Local 624 are entitled to perform the stripping of
the forms from the concrete at all construction
sites where the geographical jurisdictions of Local
Union No. 721, Laborers' International Union of
North America, AFL-CIO and United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, Local 624 coincide.
3. Employees of Freeman 'Concrete Construction
Company who are represented by United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, Local 424 are entitled to perform the strip-
ping of the forms from concrete at all construction
sites where the geographical jurisdictions of Local
Union No. 721, Laborers' International Union of
North America, AFL-CIO, and United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, Local 424 coincide.
4. Local Union 721, 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 H. H. Hawkins & Sons
Company, J. F. White Contracting Company, and
Freeman Concrete Construction Company to
assign the disputed work to employees represented
by it.
5. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No.
721, Laborers' International Union of North Amer-
ica, AFL-CIO shall notify the Regional Director
for Region 1, in writing, whether it will refrain
from forcing the Employers, by means proscribed
by Section 8(b)(4)(D), to assign the disputed work
in a manner inconsistent with this determination.