Los Angeles County District Council Of Carpenters

National Labor Relations Board - Board DecisionsApr 30, 1990

298 N.L.R.B. 412 (N.L.R.B. 1990)

412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Los Angeles County District Council of Carpenters and Swinerton & Walberg Co. International Association of Bridge , Structural & Ornamental Iron Workers , Local No. 433 and Swinerton & Walberg Co. Cases 21-CD-568 and 21-CD-569 April 30, 1990 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charges, Cases 21-CD-568 and 21-CD-569, in this Section 10(k) proceeding were filed October 4, 1989,1 by Swinerton & Walberg Co. (Swiner- ton), alleging that the Respondents, Los Angeles County District Council of Carpenters (District Council) and International Association of Bridge, Structural & Ornamental Iron Workers, Local No. 433 (Local 433), respectively, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Swinerton to assign certain work to em- ployees it represents rather than to employees rep- resented by the other union. The hearing was held November 1, 1989, before Hearing Officer Steven G. Siebert. 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 Swinerton, a California corporation, is engaged in the construction industry as a general contractor in California, where it annually purchases goods and products valued in excess of $1 million directly from suppliers located outside the State of Califor- nia. The parties stipulate, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Dis- trict Council and Local 433 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Swinerton is the general contractor for the con- struction of a printing plant for the Los Angeles Times at 2000 East Eighth Street, Los Angeles, ' All subsequent dates refer to 1989 unless specified otherwise. California. Swinerton is party to contracts with the District Council and Local 433. In March 1989, Swinerton subcontracted the construction of a quiet room in the printing plant to Industrial Noise Corporation (INC). The contract specifies that Swinerton shall provide the employees to do the work and INC shall provide the materials. The em- ployees are on Swinerton's payroll, but INC reim- burses Swinerton for the labor costs. Swinerton hired carpenters, rather than ironworkers, to install prefabricated acoustical panels on the structural steel frame of the quiet room because INC request- ed a crew of carpenters. INC does not have a con- tract with either union. The installation of the acoustical panels on the quiet room walls was scheduled to be done in three phases. The first two phases also involved installing the panels on the printing presses themselves. There is no dispute that installing the panels on the presses was carpenter's work. The third phase in- volved only the walls of the quiet room. On March 17, Swinerton's job superintendent, Richard Walbourne, advised District Council Busi- ness Agent Steven Graves that the quiet room work was being assigned to carpenters. Phase 1 of the quiet room began in late March or early April with carpenters doing the disputed work. Around this time, Local 433 Business Agent Jim Butner dis- cussed the work assignment with Walbourne. Butner asserted the work belonged to ironworkers and threatened to take economic action against Swinerton if the assignment was not changed. The Unions' contracts with Swinerton provide that in the event of a jurisdictional dispute, the International representatives of both unions shall meet to settle the issue. If the International repre- sentatives reach an agreement, the employer is bound to implement that agreement. If no agree- ment is reached, the employer continues with its own work assignment. Accordingly, on April 3, Walbourne met with the Unions' local representa- tives, as well as Carpenters International Repre- sentative Paul Cecil and Iron Workers Internation- al Representative R. W. Lansford. The outcome of the April 3 meeting is a subject of dispute among the parties. The District Council claims that because Cecil was unfamiliar with the material being used, Cecil and Lansford agreed to contact Walbourne with a final decision after further investigation. Local 433 asserts that Cecil ceded the work to the ironwork- ers at the April 3 meeting. Walbourne testified that he left the meeting with the impression that the work had been given to the ironworkers, but that the parties would get back to him about the matter. 298 NLRB No. 52 CARPENTERS LOS ANGELES COUNCIL (SWINERTON & WALBERG) On April 4, District Council Secretary-Treasurer Douglas McCarron telephoned Walbourne and told him to disregard Cecil's comments at the April 3 meeting. McCarron advised Walbourne that Cecil misunderstood the type of material at issue. McCarron sent a confirming letter on the same date. Given the District Council's continuing claim for the work, Swinerton proceeded , around June, to begin phase 2 using carpenters to perform the disputed work. Local 433 objected again and an- other meeting was held on June 6, at which both unions continued to claim the work. On June 8, Local 433 sent Swinerton a letter stating its position that agreement had been reached at the April 3 meeting and the work con- tractually belonged to ironworkers. Accordingly, on June 13, Local 433 filed a grievance alleging Swinerton breached the contract provision requir- ing it to reassign the work as agreed to by the International representatives. A July 13 Board of Adjustment deadlocked on the grievance issue and Local 433 sought to proceed to arbitration on the matter. While Local 433 was pursuing its grievance, Swinerton sought to use the "Plan for Settlement of Jurisdictional Disputes in the Construction In- dustry" to resolve the situation . However, on August 31 , an arbitrator ruled that neither the Plan nor the arbitrator had jurisdiction to decide the dis- pute because Swinerton was not timely stipulated to the Plan. On September 18, Local 433's attorney sent Swinerton a letter stating that Local 433 was not making any jurisdictional claims, but was trying to take a contractual issue (the refusal to implement the alleged April 3 work assignment agreement) to arbitration . The letter further states that a failure to proceed to arbitration would result in the attorney advising Local 433 that it was free to take job action. On October 2, Swinerton met with District Council representatives to ask their position about a reassignment of the work to ironworkers for phase 3, scheduled to begin in late November. The District Council representatives stated they would take economic action in the event of a reassign- ment of the work. On October 16 and 17, Local 433 picketed the worksite. The picket signs read "Swinerton & Wal- berg refuses to comply with grievance and the ar- bitration procedures." B. Work in Dispute The disputed work involves the installation of prefabricated acoustical panels on the structural steel frame of the quiet room at the Los Angeles 413 Times printing plant at 2000 East Eighth Street, Los Angeles, California. C. Contentions of the Parties Swinerton contends that both unions have claimed the work and have either threatened Swin- erton or engaged in coercive activity in pursuit of the work claim. Swinerton argues the work should be awarded to employees represented by the Dis- trict Council on the basis of employer preference, the collective -bargaining agreement between Swin- erton and the District Council, economy and effi- ciency of operations , relative skills , job impact, and industry practice. The District Council argues that the work was assigned to the carpenters it represents and should be awarded to them "pursuant to the traditional elements relied upon by the Board." Local 433 contends that there are no competing claims for the work because: (1) its contractual grievance seeking compensation , not work reas- signment, is not a claim , and (2) it repeatedly has disclaimed the work . Local 433 also argues that there is not reasonable cause to believe Section 8(bx4)(D) of the Act has been violated because: (1) its picketing in response to Swinerton 's refusal to arbitrate had a lawful objective, and (2) the Dis- trict Council 's threats were not genuine. D. Applicability of the Statute In a 10(k) proceeding, the Board must determine whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. In the instant case, this requires a finding that there is rea- sonable cause to believe that one or both unions used proscribed means to enforce its claim and that there are competing claims to disputed work be- tween rival groups of employees. Local 433 contends there are no competing claims to disputed work between rival employee groups because its grievance does not constitute a claim for the work. Thus, Local 433 asserts that its grievance is premised on (1) the allegation that the International unions reached an agreement in the jurisdictional dispute on April 3, and (2) the fact that Swinerton has refused , as contractually re- quired , to implement the alleged agreement. We reject Local 433's contention. Local 433 essentially claims that, because its grievance involves the breach of a contractual pro- vision other than its jurisdictional clause, its griev- ance does not involve disputed work . However, the grievance is based on an alleged agreement be- tween the Unions settling the assignment of the 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work in dispute.2 Local 433 is seeking an arbitra- tion award of payment in lieu of the work. Never- theless, Local 433's grievance evidences that Local 433 claims its contract covers the disputed work. In circumstances such as these, the Board fords that there is a traditional jurisdictional dispute in which two unions have contracts and each union claims its contract covers the same work. See Massachu- setts Laborers District Council (Daniel O'Connell's Sons), 288 NLRB 53 (1988). Consequently, we con- clude there are active competing claims to disputed work between rival groups of employees. As noted above, in response to Swinerton's in- quiry about reassigning the work for phase 3, the District Council threatened on October 2 to take economic action against Swinerton. There is no record evidence supporting Local 433's claim that the threat was not genuine. The October 2 threat provides reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred. Local 433 argues that because its picketing had a lawful objective (compelling Swinerton to arbitrate an alleged contractual breach) the picketing could not violate Section 8(b)(4)(D). However, the pick- eting was an attempt to coerce Swinerton to arbi- trate a payment-in-lieu dispute, which we have found constitutes a claim for work. Accordingly, the October 16 and 17 picketing also provides rea- sonable cause to believe that a violation has oc- curred. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act.3 Accordingly, we find that the dispute is properly before the Board for determina- tion, and we deny Local 433's motion to quash the notice of hearing in this proceeding. 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. 2 Swinerton and the District Council do not concede that a definitive agreement was reached on April 3. 2 No party makes the argument that the "Plan for the Settlement of Jurisdictional Disputes in the Construction Industry " is a method for vol- untary adjustment to which all parties would have been bound. As noted above, the Plan declined to assert jurisdiction over this dispute. Further, we observe that Local 433 does not assert that the alleged April 3 agreement constitutes a method for the voluntary adjustment of the dispute within the meaning of Sec. 10(k). Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreements No party claims there are certifications applica- ble to the work in dispute. Swinerton has collective-bargaining agreements with both the District Council and Local 433. The parties stipulated that the disputed work is covered by District Council's contract with Swinerton. Al- though there is no such stipulation regarding Local 433, its contract claims jurisdiction over "hanging ... acoustical elements, sound barriers . . . etc." Accordingly, both unions have arguable claims to the work under their contracts with Swinerton. Therefore, this factor favors an award of the dis- puted work to neither group of employees. 2. The Employer's preference Swinerton assigned the installation of the acousti- cal panels in the Los Angeles Times printing plant quiet room to employees represented by the Dis- trict Council. Swinerton has stated its preference that the work continue to be done by this group of employees. Accordingly, this factor favors an award of the disputed work to employees repre- sented by the District Council. 3. Industry practice Evidence presented at the hearing shows at least 10 instances within the past few years where car- penters installed acoustical panels . Local 433 pre- sented no evidence that ironworkers have per- formed similar work in the past. Accordingly, this factor favors an award of the disputed work to em- ployees represented by the District Council. 4. Economy and efficiency of operation The installation of the acoustical panels at the Los Angeles Times quiet room is a three-phase process. At the time of the hearing in this matter, phases 1 and 2 had been completed. The hearing involved the assignment of the work in phase 3. Because employees represented by the District Council did the work in phases 1 and 2, they are familiar with the operating procedures of installing the panels and could do the phase 3 work more readily and efficiently than ironworkers unfamiliar with the work of the first two phases. Therefore, this factor favors an award of the disputed work to employees represented by the District Council. CARPENTERS LOS ANGELES COUNCIL (SWINERTON & WALBERG) 415 5. Relative skills The record reveals that the work involves at- taching the acoustical panels to the structural steel framework with pop rivets . No special education or skills are required to perform this work. Al- though carpenters' previous experience favors awarding them the disputed work for reasons of ef- ficiency, the record does not suggest that Local 433-represented employees lack the skills for per- forming the mechanics of the disputed work. Ac- cordingly, this factor favors an award of the dis- puted work to neither group of employees. Conclusions After considering all the relevant factors, we conclude that employees represented by the Dis- trict Council are entitled to perform the work in dispute. We reach this conclusion relying on the factors of employer preference , industry practice, and economy and efficiency of operations. In making this determination , we are awarding the work to employees represented by the District Council , not to that Union or its members . The de- termination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Swinerton & Walberg Co. rep- resented by Los Angeles County District Council of Carpenters are entitled to perform the installa- tion of prefabricated acoustical panels on the struc- tural steel frame of the quiet room at the Los An- geles Times printing plant at 2000 East Eighth Street, Los Angeles, California. 2. International Association of Bridge , Structural & Ornamental Iron Workers , Local No . 433 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Swinerton & Walberg Co. to assign the disputed work to employees represented by it. 3. Within 10 days from this date , International Association of Bridge , Structural & Ornamental Iron Workers , Local No . 433 shall notify the Re- gional Director for Region 21 in writing whether it will refrain from forcing the Employer , by means proscribed by Section 8(b)(4)(D ), to assign the dis- puted work in a manner inconsistent with this de- termination. CHAIRMAN STEPHENS , concurring. I concur in the result.