Laborers' Local 935

National Labor Relations Board - Board Decisions

Nov 29, 1971

194 N.L.R.B. 367 (N.L.R.B. 1971)

LABORERS' LOCAL 935 367
Laborers' International Union of North America, Local
935, AFL-CIO (Campbell Construction Co., Inc.)1
and Builders Association of Eastern Ohio &
Western Pennsylvania and United Brotherhood of
Carpenters and Joiners of America , Local 1438,
AFL-CIO. Case 8-CD-215
November 29, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Builders Association of Eastern Ohio
& Western Pennsylvania in behalf of its member
Campbell Construction Co., Inc ., herein called the
Employer, alleging that Laborers ' International Un-
ion of North America, Local 935 , AFL-CIO, herein
called Laborers , had violated Section 8(b)(4)(D) of
the Act . The charge alleges, in substance , that the
Laborers , by striking, or otherwise withholding
services, violated the Act in that one of the purposes
of the strike was to force the Employer to assign
certain work to its members rather than to members
of the United Brotherhood of Carpenters and Joiners
of America, Local 1438 , AFL-CIO (herein called
Carpenters). Pursuant to notice , a hearing was held in
Warren , Ohio , before Hearing Officer Sanford Gross
on August 10, 1971 . All parties appeared and were
afforded full opportunity to be heard , to examine and
cross-examine witnesses , and to adduce evidence
bearing on the issues.2 Thereafter , the Employer, the
Laborers , and the Carpenters filed briefs which have
been duly considered by the Board.
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 case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
Campbell Construction Co., Inc., is an Ohio
corporation engaged in the general construction
1 Employer's name appears as amended at the hearing.
2 Laborers withdrew from the hearing prior to its close. Counsel for the
Laborers , prior to his departure , was advised by the Hearing Officer that
the hearing would continue in his absence.
3 The notice of hearing in this proceeding states that the dispute
involves "the work of hooking , unhooking, signalling and loading in
connection with the moving and distribution of materials by cranes and
business, and is a wholly owned subsidiary of the Jos.
Bucheit & Sons Company, also an Ohio corporation.
For the calendar year preceding the date of the
hearing, it had a gross dollar volume of business in
excess of $5 million of which approximately 10
percent represents receipts derived from work per-
formed in Pennsylvania, and the remainder from
work performed in Ohio. Annually, Campbell pur-
chases and receives goods valued in excess of $50,000
from points directly outside the State of Ohio. The
parent company, Bucheit, for the calendar year
preceding the date of the hearing, had a gross dollar
volume of business in excess of $17 million and
received goods valued in excess of $50,000 directly
from points located outside the State of Ohio.
We find that the Employer is engaged in commerce
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 herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Laborers
and Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background
The Employer is presently engaged in the construc-
tion of an addition to, and the remodeling of, a four-
story building for the Second National Bank in
Warren, Ohio. Shortly after the commencement of
work, in June 1970, the Employer assigned the job of
power rigging to a member of the Carpenters Union.
Power rigging, which is the work involved herein,
includes the job of hooking, unhooking, and signaling
to a crane operator, for the purpose of moving
materials from stockpiles to other points on the
construction site.3
The Employer's general manager, Robert Hohman,
testified that the carpenter who was assigned the job
of power rigging did the hooking and unhooking of
forms and materials used by the Carpenters as well as
materials utilized by other trades on the job. The
Employer's project superintendent, Robert Murphy,
testified that the carpenters only did the work of
power rigging on materials used by members of the
Carpenters, and that members of other unions did the
power rigging for materials used by their respective
other power equipment from stock piles to points of installation at the
aforesaid construction site." From the record as a whole, it is clear that the
work in dispute involves the power rigging of materials from the original
stock piles until such materials reach the points of installation, and we
interpret the work as described in the notice of hearing to include such
work.
194 NLRB No. 56
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trades. Basically the work in question at the time of
the dispute involved the power rigging of materials
that the carpenters use in the performance of their
work.
In October 1970, the Employer received a letter
from a representative of the Laborers, which in effect
claimed that the power rigging should have been
assigned to the Laborers. The Employer did not reply
to this letter and heard nothing further from the
Laborers until April 9, 1971, when it was advised by a
representative of the Laborers that the Laborers
would walk off the job the following Monday, April
12, 1971, unless the power rigging was assigned to
members of the Laborers Union. On April 12, none of
the laborers reported for work. A representative of the
Laborers met with the Employer and stated that the
Laborers wanted all the power rigging and that the
men were going to continue to be, off the project.
There was no formal picketing. The Laborers re-
mained off the job for approximately 2-1/2 weeks
after which time they returned to work without any
agreement resolving the dispute. Work continued at
the site during the 2-1/2 week period. The work
assignment remains unchanged.
Subsequent to the issuance of the notice of hearing,
the Laborers sent a letter dated June 18, 1971, to the
Regional Director of Region 8, disclaiming any
interest in the disputed work. The laborers briefly
appeared at the hearing and took the position that the
hearing should not continue because the disclaimer
had remedied any dispute which might have existed.
B. The Work in Dispute
As heretofore stated, the work in dispute is the
power rigging of materials for movement from
stockpiles to points of installation at the construction
site.
C. Positions of the Parties
The Charging Party and the Employer ask that the
Board adopt those provisions of the "Contractors
Memorandum on Carpenters-Laborers Work As-
signments," promulgated by the Builders Association.
These parties contend that in accordance with the
provisions of the memorandum the Employer is free
to assign the work in question to either a carpenter,
laborer, or composite crew, depending upon the
demands of the job in question. The Employer further
requested that the Board Order in this proceeding be
given areawide application in view of the likelihood of
recurrence. In any event, the Employer and Charging
Party contend that the assignment of the disputed
work herein was properly made to the Carpenters.
The Carpenters agrees that the work assignment
was properly made, but for different reasons. Thus,
the Carpenters claims the work under its contract and
the supporting area practice. The Carpenters disa-
grees with the contention that the "Contractors
Memorandum on Carpenters-Laborers Work As-
signments" should be adopted as a means of deter-
mining the manner in which "power rigging" should
be made.
The Laborers contends that there is no jurisdiction-
al dispute before the Board because of the disclaimer
filed on June 18, 1971.
D. The 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 there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated.
As it appears that the Laborers has engaged in work
stoppages to enforce its demands for exclusive
assignment of the work, we find there is reasonable
cause to believe a violation of the Act occurred and
the dispute is properly before us for determination.
With respect to the disclaimer by the Laborers, the
Board has held, and we hold here, that such a
disclaimer does not alter the nature of the jurisdic-
tional dispute.4 Furthermore, there was uncontrovert-
ed testimony at the hearing that similar jurisdictional
disputes between the Laborers and Carpenters over
the assignment of power rigging work occurred in
other area construction sites. Neither does it appear
there is any agreed-upon method for the settlement of
the dispute.
Therefore, since the record shows that there is an
existing dispute, there is likelihood such a dispute
might reoccur and that there is no agreement for
voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act, the Board is not
precluded from making a determination in this
proceeding. The Laborers Motion to Quash the
Notice of Hearing is accordingly denied.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to the various relevant
factors inv6lved.5 The following factors are relevant
in making a determination of the dispute before us.
1. The collective-bargaining agreements
Neither Union is the certified bargaining represent-
ative of any employees of the Employer, however, it
4 Laborers ' International Union of North America Local 935, AFL-CIO 5 International Association of Machinists, Lodge 1743, AFL-CIO (J A
(Interstate Drywall, Inc), 191 NLRB No. 93. Jones Construction Co.), 135 NLRB 1402.
LABORERS' LOCAL 935 369
was stipulated that both the Laborers and the
Carpenters have been recognized by and have
bargained with the Employer as the collective-bar-
gaining representative of its carpenter and laborer
employees, and the parties are bound to collective-
bargaining agreements with the Unions through the
Employer's membership in the Builders Association.
The terms of the Carpenters contract with the
Association provide that "Where power is used in the
setting or dismantling of forms, all handling and
signalling shall be done by carpenters." In addition,
the contract provides that the Carpenters jurisdiction
extends over "the handling of rough lumber from the
designated stockpile. The handling of fixtures and
finished lumber from the delivery truck."
Article II, section B, of the Laborers contract states
that the Laborers jurisdiction extends to:
Tenders: Tending masons, plasterers, carpen-
ters and other building and construction crafts and
mining, handling and conveying of all materials
used by masons, plasterers, carpenters and other
building and construction crafts whether done by
hand or by any other process ... .
(10) SIGNAL MEN: Signal men in all construc-
tion work as defined herein ... .
From the above, it is clear that the Carpenters
jurisdiction extends to the hoisting of forms to the
point of erection. However, the provisions of the
contracts offer no guidelines as to which group of
employees is entitled to the power rigging required in
the movement of materials prior to that point.
2. Company and area practice
As heretofore noted, the Employer assigned the
disputed work to the carpenters in June 1970 and the
laborers did not walk out until April 1971, although a
letter was sent in 1970. The only other employer
practice evident at the hearing is the statement that
the Employer adheres to the "Contractors Memoran-
dum of Carpenters-Laborers Work Assignments."
The Carpenters representatives testified without
contradiction that in the area, which includes Trum-
bull County, Hubbard, Liberty Township, and Gir-
ard, the Carpenters do the power rigging, with few
exceptions. Employer and area practice, therefore,
clearly favors an award to the Carpenters.
3. Employer's preference
The Employer argues for an award to the Carpen-
ters, along the lines laid down in the Contractors
Memorandum, which calls for a composite crew when
feasible, reserving discretion to the Employer. In the
instant proceeding, the Employer chose to assign the
work to the carpenters.
Conclusions
Based upon the entire record, and after full
consideration of all relevant factors, as set forth
above, we conclude that the employees represented by
the Carpenters are entitled to the work in dispute. Our
present determination, awarding the work to the
employees who are represented by the Carpenters, but
not to that Union or its members, is limited to the
particular controversy which gave rise to this
proceeding.6
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings, the National Labor Relations
Board hereby makes the following determination of
dispute.
1. Employees of Campbell Construction Co., Inc.,
who are represented by United Brotherhood of
Carpenters and Joiners of America, Local 1430,
AFL-CIO, are entitled to perform the , work of
hooking, unhooking, signaling, and handling in
connection with the moving and distribution of
materials by cranes and other power equipment from
stockpiles to points of installation at the construction
site located at the Second National Bank building in
Warren, Ohio.
2. Laborers' International Union of North Ameri-
ca, Local 935, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force or
require Campbell Construction Co., Inc., Warren,
Ohio, to assign such work exclusively to individuals
represented by the aforesaid labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers' Internation-
al Union of North America, Local 935, AFL-CIO,
shall notify the Regional Director for Region 8, in
writing, whether or not it will refrain from forcing or
requiring Campbell Construction Co., Inc., by means
proscribed by Section 8(b)(4)(D), to assign the work
in dispute in a manner inconsistent with the above
determination.
6 The Employer urges that a broad order issue covering all area
construction operations . However, as the record will not support an order
of such scope, nor an adoption of the Contractors Memorandum, we shall
limit our award to the jobsite where the instant dispute arose Laborers'
International Union of North America, Local 935, AFL-CIO (Interstate
Drywall, Inc), supra, fn. 4, and the cases cited therein.