Plasterers Local 165 (Trans Tech)

National Labor Relations Board - Board Decisions

May 26, 1992

307 N.L.R.B. 701 (N.L.R.B. 1992)

701
307 NLRB No. 109
PLASTERERS LOCAL 165 (TRANS TECH)
1 The Respondents did not appear at the hearing.
2 The lighting work is performed by employees represented by a
local of the Electrical Workers that is not a party to this dispute.
3 All subsequent dates are in 1992 unless otherwise noted.
4 The notice of hearing described the disputed work only as to
foundations of high mast towers. At the hearing, pursuant to a stipu-
lation between the Employer and the Laborers, the description of the
Continued
Plasterers and Cement Masons, AFL–CIO, Local
Union No. 165 and Trans Tech Electric, Inc.
Northwest Indiana District Council of Carpenters,
Local No. 599 and Trans Tech Electric, Inc.
Cases 13–CD–454–1 and 13–CD–454–2
May 26, 1992
DECISION AND DETERMINATION
OF DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charges in this Section 10(k) proceeding were
filed January 30, 1992, by the Employer, Trans Tech
Electric, Inc., alleging that the Respondents, Plasterers
and Cement Masons, AFL–CIO, Local Union No. 165
(Plasterers) and Northwest Indiana District Council of
Carpenters, Local No. 599 (Carpenters) violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to employees
they represent rather than to employees represented by
Laborers International Union of North America, Local
No. 41 (Laborers). The hearing was held February 13,
1992, before Hearing Officer William M. Belkov.
The National Relations Labor Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, an Indiana corporation whose prin-
cipal place of business is in South Bend, Indiana, is an
electrical contractor specializing in highway lighting,
traffic signals, and highway ‘‘signing.’’ During the
past calendar year, the Employer derived from its Indi-
ana location gross revenues in excess of $50,000 from
its sale and performance of services to customers di-
rectly outside the State of Indiana. The Employer and
the Laborers stipulated,1 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 Laborers is
a labor organization within the meaning of Section
2(5) of the Act. The record reveals, and we find, that
Carpenters and Plasterers are labor organizations with-
in the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is subcontractor to Walsh Construc-
tion Company for sign and lighting work on the jobsite
at 7500 North Kennedy Avenue, Hammond, Indiana.
The subcontract was to perform highway signing work,
including sign structures and their foundation, and
highway lighting work, including their supporting
structures and foundations. The Employer assigned the
sign work to employees represented by the Laborers.2
On January 29, 1992,3 while the Employer was in
the process of digging for a high mast tower founda-
tion, Don Herder, business agent for the Plasterers, and
Bob Novak, business agent for the Carpenters, came to
the construction site. Novak told Robert Opaczewski,
superintendent for the Employer, that he had to inform
Brian Higgins, project engineer for Walsh Construc-
tion, that if Trans Tech did not cease operations on the
job, Novak ‘‘would have 250 pickets out there the next
day.’’
On January 29, Novak and Herder told Higgins that
Trans Tech was doing their work and that they would
shut the job down if something was not done about it.
Higgins asked Herder what he was doing there, and
Herder said that ‘‘they are also doing part of our
work.’’ Because of the threats of job shutdown, Hig-
gins and Jeff Dunifon, area manager for Walsh Con-
struction, asked the Employer to stop working.
Trans Tech employees went back to work on Feb-
ruary 3. At 7 a.m. on February 7, with Dunifon’s per-
mission, Trans Tech employees began work on the
sign foundations. At 8:30 a.m. Dunifon received a call
from Novak who, after inquiring and being told that
Trans Tech employees were preparing the form and
pouring the foundation for the signs, said: ‘‘[T]hat is
our work, they cannot do that. There will be problems
because my boss has not accepted that.’’ When
Dunifon said that he was not going to put a carpenter
on and was not going to direct Trans Tech’s work,
Novak became very angry and said there would be
‘‘great consequences.’’ Dunifon called Robert
Urbanski, president of Trans Tech, and requested that
he not perform the work that day and see if this issue
could be resolved. As of the day of the hearing, the
issue had not been resolved and Dunifon requested that
Trans Tech not go back to work on this phase of work.
B. Work in Dispute
The disputed work in Case 13–CD–454–1 involves
finishing cement foundations of high mast towers and
foundations for sign structures. The disputed work in
Case 13–CD–454–2 involves the installation of form-
ing for foundations of high mast towers and forming
for foundations for sign structures.4 The jobsite in both
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disputed work was amended to include sign structure work. The
hearing was adjourned sine die and the record was left open to give
the Carpenters and Plasterers (who did not appear at the hearing) an
opportunity to respond. No timely response was received and the
hearing was closed. The record supports the expanded description of
the disputed work.
5 The Carpenters executed disclaimers dated February 4 and 7. The
February 4 disclaimer stated, ‘‘The Union has no interest in the
work identified in N.L.R.B. Case #13–CD–454–2.’’ The February 7
document repeated the disclaimer and added, inter alia, ‘‘There have
been no threats made and will be no threats made or any other ille-
gal actions taken.’’
The Plasterers filed a disclaimer which stated, ‘‘Cement Masons
Local 165 disclaims the work in Case 13–CD–454–1, concerning the
assignment of the following tasks: Finishing of cement foundations
of high mast towers at the Construction site located at 7500 N. Ken-
nedy Avenue, Hammond, Indiana 46325. The Cement Masons Local
165 will not file a grievance on the case #13–CD–454–1.’’
We find that the disclaimers were not effective because they did
not clearly, unequivocally, and unqualifiedly disclaim all interest in
the work in dispute. As noted above, the definition of the disputed
work was amended at the hearing to include sign structure work.
Even viewing the disclaimers in the manner most favorable to the
Respondents, they cannot be interpreted to apply to the sign structure
work. Disclaimer of only part of the disputed work is not an effec-
tive disclaimer of interest in the work. Laborers (Paschen Contrac-
tors), 270 NLRB 327, 328 (1984).
Further, by a phone call on February 7, the same day as the Car-
penters’ second disclaimer, the Carpenters’ representative again
claimed the sign structure work and made a threat of ‘‘great con-
sequences’’ if a Carpenters-represented employee was not put on the
job. This statement is inconsistent with a disclaimer of the sign
structure work.
6 The Employer is signatory to a contract between Indiana Con-
structors, Inc. and Local Unions of Laborers’ International Union of
North America. Art. I of the contract covers highway construction
including construction incidental thereto. Art. XXIX prescribes
wages for categories of workers including ‘‘Sign Installation, includ-
ing supporting structures.’’
cases is, as noted above, at 7500 North Kennedy Ave-
nue, Hammond, Indiana.
C. Contentions of the Parties
The Employer contends that reasonable cause exists
to believe that the Plasterers and the Carpenters vio-
lated Section 8(b)(4)(D) of the Act. The Employer fur-
ther contends that the work in dispute should be
awarded to employees represented by the Laborers on
the basis of their collective-bargaining agreement, em-
ployer preference and past practice, economy and effi-
ciency of operations, and skills and special training.
The Employer seeks a broad order. The Employer al-
leges that, not only has it been stopped from working
on this job for Walsh Construction, but in 1991 it had
work taken away by Superior Construction Co. be-
cause of the Carpenters’ threats. The Employer fears
similar action on a future job for Superior which was
scheduled to commence the week after the hearing.
The Laborers agree with the Employer that the dis-
puted work is covered by their collective-bargaining
agreement. In addition, Laborers contends that the area
practice is to assign work of this type to employees
represented by Laborers.
Although afforded notice and opportunity to appear
at the hearing, the Plasterers and the Carpenters did
not make an appearance nor did either file any
posthearing brief.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be established that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) has been violated. This
requires a finding that there is reasonable cause to be-
lieve that a union has threatened to or has used pro-
scribed means to force an employer to assign work to
one group of employees rather than to another.
As discussed above, Carpenters Business Agent
Novak told Opaczewski, the Employer’s super-
intendent, that if Trans Tech did not cease operations
the Carpenters would have 250 pickets out there the
next day. Both Novak and Plasterers Business Agent
Herder told Higgins, Walsh’s project engineer, that
Trans Tech was doing their work and that they would
shut the job down if something was not done about it.
In addition, on February 7, when Trans Tech com-
menced work on the sign foundations, Novak called
Dunifon, Walsh’s area manager, claimed the work, and
threatened ‘‘great consequences.’’
Based on the foregoing, we find reasonable cause to
believe that both Carpenters and Plasterers have vio-
lated Section 8(b)(4)(D). We further find that there ex-
ists no agreed method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act. Accordingly, we find that the dispute is properly
before the Board for determination.5
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining
agreement
There is no evidence that any of the Unions was
ever certified by the Board to represent the employees
of the Employer. The Employer has a collective-bar-
gaining agreement with the Laborers effective April 1,
1990, through March 31, 1993.6 In addition, the record
703PLASTERERS LOCAL 165 (TRANS TECH)
contains a letter of September 16, 1991, from the Em-
ployer to the Laborers International making a written
assignment of all highway sign work to employees rep-
resented by the Laborers Local Union. The Employer
does not have a contract with either the Carpenters or
the Plasterers. This factor favors awarding the work in
dispute to employees represented by the Laborers.
2. Company preference and past practice
The Employer prefers that the work in dispute be
performed by employees represented by the Laborers.
The Employer has used laborers to do this type of
work since it commenced business in January 1983
and prefers to continue to do so. This factor favors
awarding the work in dispute to employees represented
by the Laborers.
3. Area and industry practice
Urbanski and Opaczewski each testified that his pre-
vious employer, as well as Trans Tech, used employ-
ees represented by the Laborers to do this type of
work. Richard Green, secretary-treasurer of Laborers
Local 41, testified that the work at issue has been per-
formed by employees represented by Laborers in Lake
County and the whole State of Indiana, and he was not
aware of any similar jobs that the Laborers-represented
employees had not done during the 11 years he had
been in office. The evidence of area practice is limited
to the personal experience of the individuals who testi-
fied and to the past practice of the Employer. There
was no evidence concerning industry practice. We find
that the evidence is inconclusive and that this factor
does not favor awarding the work in dispute to any
specific group of employees.
4. Relative skills
The Employer attested to the skill of employees rep-
resented by the Laborers and presented evidence of the
special training offered by the Laborers to its members
in sign erection, form building, form setting, and con-
crete work. Because there is no evidence in the record
regarding the skills and training of the Plasterers and
Carpenters in doing the disputed work, we find that
this factor favors awarding the work in dispute to em-
ployees represented by the Laborers.
5. Economy and efficiency of operations
The record shows that it is more economical and ef-
ficient to use Laborers-represented employees for the
disputed work. Laborers are already on the job helping
excavate and are trained in sign erecting and in form-
ing. The forming is very simple in most cases, and it
is more economical and efficient to have the laborers
set the form, pour the concrete, and put the reinforcing
steel in it. The alternative would be to place two car-
penters, a cement finisher, maybe two iron workers,
some laborers, and operators on the job, which would
make it economically unfeasible to perform the work.
We find that this factor favors awarding the work in
dispute to employees represented by the Laborers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Laborers Inter-
national Union of North America, Local No. 41 are en-
titled to perform the work in dispute. We reach this
conclusion relying on the collective-bargaining agree-
ment between the Employer and the Laborers, em-
ployer preference and past practice, economy and effi-
ciency of operations, and relative skills.
In making this determination, we are awarding the
work to employees represented by Laborers Inter-
national Union of North America, Local No. 41, not
to that Union or its members.
Scope of Award
The Employer requests a broad award covering all
present and future jobsites where employees rep-
resented by the Laborers are utilized to perform this
type of work. Generally, in order to support a broad
award, there must be evidence that the disputed work
has been a continuing source of controversy in the rel-
evant geographic area, that similar disputes are likely
to recur, and that the charged parties have a proclivity
to engage in unlawful conduct to obtain work similar
to the disputed work. Electrical Workers IBEW Local
104 (Standard Sign), 248 NLRB 1144, 1148 (1980).
We find that the record does not support a broad
award.
The Employer presented evidence that the Car-
penters made threats in August 1991 when the Em-
ployer was subcontractor for similar work for Superior
Construction Co., Inc. (Superior). Superintendent
Opaczewski testified that Carpenters Business Agent
Novak stated he did not recognize Trans Tech’s agree-
ment with the Laborers and that he would shut the job
down if they continued to do the work. Opaczewski
also testified that Novak threatened at that time to put
Trans Tech out of business and to go to South Bend
and ‘‘take care of business there’’ if they proceeded
with work over there. The Employer claims that, as a
result of the dispute, Superior withdrew the sign work
from Trans Tech’s contract. There was no Board deter-
mination of that dispute. Urbanski testified that he did
not file a charge because he did not know that the
Board process was available.
The Employer asserts that it now fears similar action
in an upcoming contract with Superior. Urbanski testi-
fied that Lagura from Superior had advised him that
the Carpenters and Plasterers were claiming the work
and that if the dispute was not resolved, Superior
would again withdraw the sign work from the contract.
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However, the Employer presented no direct evidence
of any unlawful threats made by the Respondents in
regard to the upcoming job. Opaczewski testified that
he had heard of threats ‘‘through the grapevine’’ but
that he had no direct knowledge of any threats relating
to the upcoming job.
The Board has not previously determined jurisdic-
tional disputes involving these parties. Further, the
record is insufficient to demonstrate the likelihood that
the Plasterers and Carpenters will resort to unlawful
means in the future to obtain assignment of work simi-
lar to that in dispute. Under these circumstances, we
find that the determination should be limited to the
particular controversy which gave rise to this pro-
ceeding. See generally Teamsters Local 170 (Barletta
Co.), 248 NLRB 1008, 1012 fn. 6 (1980); Electrical
Workers IBEW 103 (Comm-Tract), 289 NLRB 281,
283 fn. 6 (1988).
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Trans Tech Electric, Inc. rep-
resented by Laborers International Union of North
America, Local No. 41 are entitled to perform fin-
ishing of cement foundations of high mast towers and
foundations for sign structures, and the installation of
forming for foundations of high mast towers and form-
ing for foundations for sign structures at the jobsite lo-
cated at 7500 North Kennedy Avenue, Hammond, In-
diana.
2. The Respondents, Plasterers and Cement Masons,
AFL–CIO, Local Union No. 165 and Northwest Indi-
ana District Council of Carpenters, Local No. 599, are
not entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force the Employer to assign the disputed
work to employees represented by them.
3. Within 10 days from this date, Plasterers and Ce-
ment Masons, AFL–CIO, Local Union No. 165 and
Northwest Indiana District Council of Carpenters,
Local No. 599 shall notify the Regional Director for
Region 13 in writing whether they will refrain from
forcing the Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.