Operating Engineers Local 12 (Stief Co. West)

National Labor Relations Board - Board Decisions

Aug 24, 1994

314 N.L.R.B. 874 (N.L.R.B. 1994)

874
314 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent also filed a Sec. 301 lawsuit to compel arbitra-
tion against Kasler Corporation regarding one of the grievances.
2 Kasler, M.C.M. Construction, and Kiewit Pacific are members of
the Associated General Contractors of California, Inc., who nego-
tiated the MLA with the Respondent.
International Union of Operating Engineers, Local
12, AFL–CIO and Stief Co. West and Kasler
Corporation; M.C.M. Construction; and Kiewit
Pacific Co., Parties in Interest. Case 21–CC–
3158
August 24, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
Upon a charge filed by Stief Co. West (the Em-
ployer) on August 12, 1992, amended on January 12,
1993, and duly served on International Brotherhood of
Operating Engineers, Local 12, AFL–CIO (the Re-
spondent), the General Counsel of the National Labor
Relations Board issued a complaint and notice of hear-
ing on May 13, 1993, against the Respondent alleging
that it had violated Section 8(b)(4)(ii)(A) of the Na-
tional Labor Relations Act. The complaint was amend-
ed on October 8, 1993.
The complaint alleges that the Respondent filed
grievances against three general contractors, each a
signatory to the Respondent’s master labor agreement
(MLA), asserting that they violated the MLA by sub-
contracting the hoisting, lowering, placing, and remov-
ing of steel forms used in the barrier wall construction
to the Employer, who is not a signatory to the MLA.1
The complaint further alleges that the Respondent en-
gaged in this conduct with an object of forcing the
contractors to reaffirm an agreement prohibited by Sec-
tion 8(e) of the Act, and thereby engaged in an unfair
labor practice under Section 8(b)(4)(ii)(A). The Re-
spondent filed an answer and an amended answer de-
nying the commission of any unfair labor practices.
On August 31, 1993, the parties entered into a stipu-
lation of facts, and on November 4, 1993, the parties
submitted a motion to transfer proceedings to the
Board. The parties waived a hearing before an admin-
istrative law judge and agreed to submit the case di-
rectly to the Board for findings of fact, conclusions of
law, and a Decision and Order, based on a record con-
sisting of the charges, the complaint, the answer to the
complaint, the order rescheduling hearing, the amend-
ment to the complaint, and amended complaint, the an-
swer to the amended complaint, the stipulation of
facts, and the exhibits attached thereto. On February
25, 1994, the Board approved the stipulation and trans-
ferred the proceeding to the Board. Thereafter, the
General Counsel, the Respondent, and the Employer
filed briefs with the Board.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The issue presented by this case is whether the work
at issue here, which was subcontracted by Kasler Cor-
poration, M.C.M. Construction, and Kiewit Pacific Co.
to the Employer, is ‘‘jobsite work’’ that is covered by
the construction industry proviso to Section 8(e) of the
Act.
The Board has considered the entire record stipu-
lated by the parties and the parties’ briefs and makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a California corporation, with its
principal office and places of business in the State of
California, at all material times has been engaged in
providing boom truck services and other services to
companies in the construction industry in southern
California. The Employer annually furnishes services
valued in excess of $50,000 to customers in the State
of California, each of whom, in turn, annually pur-
chases and receives goods valued in excess of $50,000
directly from points located outside the State of Cali-
fornia. We find that the Employer is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. We also find that the Re-
spondent is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
The Employer is a subcontractor engaged in the con-
struction of concrete barriers on bridge and highway
projects in the State of California. In the course of the
construction process, the Employer uses boom trucks
and tractors with cranes mounted behind their cabs.
Heavy steel forms used in constructing the concrete
barriers are transported to the construction site on the
trailers and on the boom truck and are positioned and
removed at the jobsite using the crane.
The Employer has never had a collective-bargaining
agreement with the Respondent. As noted above, the
Respondent has a collective-bargaining agreement (the
MLA) with general contractors Kasler, M.C.M. Con-
struction, and Kiewit Pacific.2 The MLA contains
grievance procedures to resolve jurisdictional disputes.
From August 28, 1991, to August 19, 1992, the Re-
spondent filed four grievances against the general con-
tractors claiming that they subcontracted steel form
hoisting, lowering, placing, and removal covered by
the MLA to the Employer, a company that is not a
party to the MLA, in violation of the subcontracting
875OPERATING ENGINEERS LOCAL 12 (STIEF CO.)
clause contained in article I of the MLA. The griev-
ances involve: a Kasler project on Interstate 10 in Red-
lands, California; a Kasler project at Century Freeway
and Crenshaw Boulevard in Los Angeles; an M.C.M.
project at the Century and 710 Freeways in Los Ange-
les; and a Kiewit project on North Bristol Street in
Santa Ana. In December 1991, the Respondent filed a
Section 301 lawsuit to compel arbitration against
Kasler concerning the grievance over the Interstate 10
project; the United States District Court, Central Dis-
trict of California, granted summary judgment in favor
of the Respondent.
The MLA contains the following provisions:
Article I, Section B, Paragraph 10 Subcontracting,
Employee Rights, Union Standards and Work
Preservation
(a) The purposes of this Section 10 are to pre-
serve and protect the work opportunities normally
available to employees and workmen covered by
this Agreement, maintenance and protection of
standards and benefits of employees and workmen
negotiated over many years and preservation of
the right of Union employees, employed here-
under, from being compelled to work with non-
Union workmen.
. . . .
(c) Neither the Contractor nor any of his Sub-
contractors shall subcontract any work to be done
at the site of the construction, alteration, painting
or repair of a building, structure or other work
coming within the jurisdiction of the Cement Ma-
sons, Laborers, Operating Engineers, Teamsters or
Ironworkers except to a person, firm or corpora-
tion party to an appropriate labor agreement with
the appropriate Local Union or Council of Labor-
ers, Cement Masons, Operating Engineers, the
International Brotherhood of Teamsters or Iron-
workers.
Kasler, M.C.M., and Kiewit each subcontracted the
construction of permanent concrete walls on freeway
bridges, for the projects described above, to the Em-
ployer. The projects were estimated to take 6 months
(Kasler-Redlands), 2 years (Kasler-Crenshaw), 2-1/2
years (M.C.M.), and 4 years (Kiewit) to complete. At
the time the parties entered into the stipulation, the
Kasler Interstate 10 project was 100 percent complete,
the Kasler project at Century Freeway and Crenshaw
Boulevard was 98 percent complete, the M.C.M.
project was at least 98 percent complete, and the
Kiewit project was approximately 13 percent complete.
The Employer was responsible at each project for
constructing barrier walls on the decks of the freeway
bridges, pursuant to contracts which generally called
for the Employer to furnish all necessary materials and
labor. The barrier walls are approximately 12 inches
thick and 2 feet high, with a front wall facing the deck
of the freeway and a back wall facing out over the
freeway bridge. The barriers are constructed using 10-
foot-long, and 3/4-inch-thick, steel forms weighing ap-
proximately 750 pounds each. The Employer generally
joins three of these forms together and works with 30-
foot-long sections.
The Employer transports the steel forms using boom
trucks and tractors that each have a boom mounted be-
hind the cab. A boom is a steel arm with a large steel
hook connected to two chains ending with two smaller
hooks. The boom is manipulated vertically and hori-
zontally using levers mounted on a panel behind the
cab of the trucks. Each of the boom trucks pulls a 20-
foot trailer while each of the tractors pulls a 45-foot
trailer.
The barrier wall construction process at each of the
projects is substantially the same. The Employer em-
ploys drivers represented by the Teamsters to transport
the steel forms to and from the project. The forms are
initially delivered from the Employer’s own yard to
the general contractor’s storage yard and are thereafter
moved between the jobsite and the storage yard as
needed. The driver arrives at the project in the morn-
ing and drives a load of forms to the place at the con-
struction site where they will be used. The driver
meets the Employer’s composite crew at the construc-
tion site. The composite crew is typically made up of
one foreman, two laborers, one carpenter, and one ce-
ment mason. The foreman instructs the crew and driver
about where the steel forms will be set that day. The
driver then gets into the boom truck and, starting in
the place where the first barrier will be constructed,
slowly drives along the deck about 300 feet. The com-
posite crew walks behind the boom truck unloading
hardware used to fasten the forms to the decking. After
the hardware is laid out, the composite crew goes back
and secures it to the deck.
The driver next returns the boom truck or tractor to
the place where the first form will be placed. The driv-
er manipulates the levers on the control panel to raise
the boom and to lower it above the first form on the
truck or trailer that is to be removed. A laborer from
the composite crew attaches the small chain hooks into
the eye-holes on the lengthwise ends of a steel form.
The driver then raises the form from the trailer and
moves the form above the location on the concrete
deck where it will be placed. Two members of the
composite crew stand on either end of the form to
guide it to the deck and to prevent swinging. The driv-
er next lowers the form to the deck. The composite
crew aligns the form on the deck, a laborer unhooks
the chains, and the driver raises the boom and swings
it to the next form on the trailer. A laborer connects
the chains to the next form, the form is lifted by the
driver manipulating the boom, and the form is swung
over to the appropriate place on the deck. After the
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is the General Counsel’s position that the subcontracting provi-
sion of the MLA is not facially unlawful.
second form is placed, the composite crew starts con-
necting the forms together lengthwise. This process is
repeated until 300 feet of front forms are set in place.
After the front forms have been set, all of the back
forms are hoisted and placed in their final positions on
the deck, approximately 12 inches behind the front
forms. After each back form is placed, the composite
crew attaches hardware to the front and back panels to
connect them together. Final placement of 300 feet of
front and back forms creates a mold for the first por-
tion of the barrier wall. Creating the mold takes most
of a morning. After lunch, the composite crew and
driver go back to the forms that were set earlier and
pour concrete into the barrier molds. At the end of the
day, the driver transports any leftover forms to the
storage yard.
The next day, the driver picks up the trailer and any
needed forms from the storage yard and proceeds to
the construction site. The driver drives the truck to the
place on the deck where the barrier walls were poured
the day before, swings the boom over the first form
that was placed, and lowers the chains on the boom
down to the form. The composite crew connects the
chains on either side of the form and the driver pulls
the form away from the newly made wall. The com-
posite crew then scrapes any remaining concrete from
the form and sprays an oil-like substance on the form.
The driver raises the boom and swings the form back
onto the trailer, and then drives the truck to the place
along the wall where the form needs to be placed to
create the next mold. The process of stripping the new
walls of the forms is repeated until all of the forms are
stripped. If a form is not needed again that day, it is
set on the trailer and transported back to the storage
yard.
When the barrier walls are dry, the exterior and inte-
rior of the walls are finished to rid the walls of excess
concrete. According to the stipulated facts, a driver
was involved in the finishing process only of the exte-
rior portions of the walls at one of the Kasler projects.
The driver used the control panel levers to hoist a man
cage over the exterior walls so that a composite crew
member could sand blast them.
Forms are often transported to or from a project,
during the course of the project, because they are
needed at other projects. When the projects are com-
pleted, the forms are taken back to the Employer’s
yard or are delivered to other Employer projects. The
forms never become permanent fixtures of a project.
The parties stipulated that there is no special training
program or apprentice program for drivers to train
them to operate the boom control panel, or for many
of the Employer’s other employees who performed
work at the Kasler, M.C.M., and Kiewit projects.
B. The Parties’ Contentions
The General Counsel and the Employer contend that
the Respondent violated Section 8(b)(4)(ii)(A) of the
Act which makes it unlawful for a union to coerce an
employer to enter into an agreement that is prohibited
by Section 8(e). Section 8(e) of the Act makes it an
unfair labor practice for an employer and a union to
enter into an agreement whereby the employer agrees
to refrain from doing business with any other person.
The General Counsel and the Employer argue that the
Respondent violated Section 8(b)(4)(ii)(A) by filing
grievances against Kasler, M.C.M., and Kiewit, as well
as a lawsuit against Kasler, in an effort to force those
general contractors to reaffirm the subcontracting pro-
vision of the MLA as applied to the work at issue
here, and thereby to enforce an agreement to cease
doing business with the Employer—an agreement un-
lawful under Section 8(e).3
The Respondent contends that it has not violated the
Act because, it argues, the process of hoisting, low-
ering, placing, and removing the steel forms falls with-
in the construction industry proviso of Section 8(e),
which states:
Provided, That nothing in this subsection (e) shall
apply to an agreement between a labor organiza-
tion and an employer in the construction industry
relating to the contracting or subcontracting of
work to be done at the site of the construction, al-
teration, painting, or repair of a building, structure
or other work. [Emphasis added.]
The General Counsel and the Employer, on the other
hand, argue that the hoisting, lowering, placing, and re-
moving of the steel forms constitute the final act of de-
livery of the forms and thus do not fall within the pro-
viso. For the reasons discussed below, we find that the
work at issue is jobsite work.
C. Analysis and Conclusions
Initially, we note that the work subcontracted to the
Employer, the erection of concrete highway bridge bar-
rier walls, is plainly ‘‘work actually to be done at the
construction jobsite.’’ Carpenters District Council
(Cardinal Industries), 136 NLRB 977, 988 (1962).
Thus, each of the contracts between the Employer and
the general contractor provide that the Employer will
furnish the labor and materials necessary to erect the
barrier walls at the specified location. Likewise, the
specific work addressed in the grievances, the hoisting
and placing of the steel forms by the Employer’s driv-
er, also was performed at the site of construction.
We find no merit to the argument, advanced by the
Employer and the General Counsel, that the work at
877OPERATING ENGINEERS LOCAL 12 (STIEF CO.)
4 As the Board recognized in Teamsters No. 42 (AGC of Cali-
fornia), the legislative history of Sec. 8(e) reveals that a primary mo-
tivation for the enactment of the proviso was the desire to ‘‘prevent
potential labor strife between union and nonunion personnel working
at the same jobsite.’’ Id. at 815. Thus, these concerns are not impli-
cated by the temporary presence on the jobsite of delivery personnel.
Id.
5 Teamsters Local 294 (Island Dock Lumber), 145 NLRB 484
(1963), enfd. 342 F.2d 18 (2d Cir. 1965).
6 Joint Council of Teamsters No. 42 (Inland Concrete Enterprises),
225 NLRB 209 (1976).
7 Teamsters Local 282 (D. Fortunato, Inc.), 197 NLRB 673
(1972).
8 Teamsters Local 294 (Rexford Sand & Gravel), 195 NLRB 378
(1972).
9 Teamsters No. 42 (AGC of California), supra, 248 NLRB at 817.
10 In this regard, we note that many if not all skilled workers
transport their own tools onto the jobsite in connection with their
jobsite construction work. This transportation function has not been
found to require the exclusion of these individuals from the pro-
viso’s protection, however, because they also are engaged in the
‘‘construction, alteration, painting, or repair of a building, structure,
or other work,’’ 29 U.S.C. § 158 (e), and thus have a close and con-
tinuing contact with the other employees at the jobsite. For the same
reasons, we find that the work at issue in this case is jobsite work
and we note that, in light of the close and continuing contact be-
tween the driver and the rest of the Employer’s composite crew, and
the entire crew’s continuous presence at the jobsite, our finding that
the disputed work is protected by the proviso is consistent with the
congressional intent in enacting the proviso, as set forth above.
issue falls outside the proviso because the driver also
transported the forms to and from the jobsite. In this
regard, we recognize that, based on the legislative his-
tory of the proviso to Section 8(e), the Board has
found that the proviso does not apply to various types
of transportation work. See Joint Council of Teamsters
No. 42 (AGC of California), 248 NLRB 808 (1980),
enfd. sub nom. Teamsters Joint Council No. 42 v.
NLRB (California Dump Truck Owners Assn.), 671
F.2d 305 (9th Cir. 1981), amended 702 F.2d 168 (9th
Cir. 1981), cert. denied 464 U.S. 827 (1983).4 Thus,
the Board has found that the mixing, delivery, and
pouring of ready-mix concrete,5 the delivery of precast
concrete pipe,6 the transportation of tools, materials,
and personnel to and from a construction site,7 the de-
livery of sand fill,8 and the haulage of waste9 are not
jobsite work.
However, we find that the work at issue here is dis-
tinct from the foregoing examples and falls within the
Board’s narrow definition of jobsite work. Although
the Employer’s boom truckdrivers occasionally trans-
port forms to and from the jobsite during each high-
way project, this transportation work is only an inci-
dental part of the drivers’ duties. (Indeed, the Union’s
grievances do not even expressly encompass this
work.) Their principal task throughout each project
(lasting from 6 months to 4 years) is to operate the
boom truck on the jobsite. They repeatedly and con-
tinuously hoist, lower, place, and remove steel forms
as an integral part of the process of constructing bar-
rier walls. While performing this work, the drivers are
as much a part of the construction crew as any of its
other members, and neither the General Counsel nor
the Employer contends, nor could they reasonably con-
tend, that these other employees are not performing
jobsite construction work.
This case is clearly distinguishable from Inland
Concrete, supra, and Island Dock, supra, on which the
General Counsel principally relies. In Inland Concrete,
the use of a boom truck to lower and place precast
concrete pipes into a ditch constituted a final act of de-
livery, rather than jobsite work, and the pipes were
products that, once delivered and deposited into the
ditch, became permanent fixtures on the site. Here, by
contrast, the forms are lowered, placed, connected, and
used as a mold over and over again in the construction
of the barrier walls, and ultimately are removed for use
by the Employer for use on its other projects. Thus, as
the Respondent suggests, the steel forms are more akin
to tools and equipment used continuously by employ-
ees at the site than to materials, products, or supplies
that are simply delivered by a driver whose contact
with workers at the site is incidental to that delivery.10
For similar reasons, the work here differs from the
mixing and pouring of concrete involved in Island
Dock. The Board there held (145 NLRB at 491) that
the work at issue was merely the final act of delivery
because ‘‘liquid concrete, by its nature, cannot be
dumped on the ground at the construction site like
other materials.’’ Accord: Inland Concrete, 225 NLRB
at 216. In contrast, steel forms could be dumped on the
ground at the construction site, where they could then
be picked up by workmen like the boom truck drivers
involved here and used repeatedly in the very distinct
work of constructing the concrete barriers.
For the reasons discussed above, we find that hoist-
ing, lowering, placing, and removing steel forms is
jobsite work that is covered by the construction indus-
try proviso of Section 8(e), and that the Respondent
did not violate Section 8(b)(4)(ii)(A) by attempting to
enforce the subcontracting provision of the MLA with
respect to that work. Accordingly, we shall dismiss the
complaint in its entirety.
CONCLUSIONS OF LAW
1. Stief Co. West is an employer engaged in com-
merce or a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The hoisting, lowering, placing, and removing of
steel forms at issue in this case constitutes work to be
done at the construction site and falls within the first
proviso to Section 8(e) of the Act.
4. The Respondent did not violate Section
8(b)(4)(ii)(A) of the Act by filing grievances against
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kasler, M.C.M., and Kiewit, or by filing a Section 301
lawsuit against Kasler, in an effort to enforce the sub-
contracting provision of the MLA.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, the National Labor Relations Board orders
that the complaint is dismissed in its entirety.