Laborers Northern California District Council (Mustang Construction)

National Labor Relations Board - Board Decisions

Dec 6, 1991

305 N.L.R.B. 809 (N.L.R.B. 1991)

809
305 NLRB No. 112
LABORERS NORTHERN CALIFORNIA DISTRICT COUNCIL (MUSTANG CONSTRUCTION)
1 Mustang President Jimmy Foster testified that he does occasional
small pile driving jobs when specifically requested to do so, but that
pile driving is a minor part of his business.
2 The machine is actually operated by an employee represented by
the Operating Engineers Union.
3 This case is now on appeal before the United States Court of Ap-
peals for the Ninth Circuit.
Northern California District Council of Laborers,
Laborers’ International Union of North Amer-
ica, AFL–CIO and Mustang Construction, Inc.
and Pile Drivers, Bridge, Wharf and Dock
Builders, Local Union 34, United Brotherhood
of Carpenters and Joiners of America, AFL–
CIO. Case 20–CD–683
December 6, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on June 28, 1991, by Mustang Construction, Inc.
(Mustang), alleging that the Respondent, Northern
California District Council of Laborers, Laborers’
International Union of North America, AFL–CIO (La-
borers) violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing Mustang to assign certain
work to employees it represents rather than to employ-
ees represented by Pile Drivers, Bridge, Wharf and
Dock Builders, Local Union 34, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO (Pile
Drivers). The hearing was held September 4, 1991, be-
fore Hearing Officer Benjamin Rodriguez.
The National Labor Relations 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
Mustang, a North Carolina corporation doing busi-
ness in California, is engaged in the construction in-
dustry, installing soil de-watering wick drains. During
the 1990 calendar year, Mustang purchased and re-
ceived goods valued in excess of $50,000 from points
directly outside the State of California for use at its
California jobsites. Mustang and Laborers stipulated,
and we find, that Mustang is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Mustang and Laborers also stipulated, and we find,
that the Laborers is a labor organization within the
meaning of Section 2(5) of the Act. We also find that
the Pile Drivers, who did not appear at the hearing, is
a labor organization within the meaning of Section
2(5), based on a previous stipulation to that effect in
Iron Workers Local 377 (Judson Steel Corp.), 202
NLRB 906 (1973), and the fact that the testimony and
exhibits show that the Pile Drivers meets with employ-
ers concerning wages, hours, and working conditions
of employees, negotiates labor contracts, and pursues
grievances based on perceived violations of these con-
tracts. We also take administrative notice that in its
brief to the United States District Court for the North-
ern District of California in Case C–90–3032–WHO,
the Pile Drivers admitted that it is a labor organization
within the meaning of Section 2(5) of th Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Mustang has been in the business of installing soil
stabilization wick drains since 1986. Mustang used pile
driving equipment to perform this work until the static
vibro excavation device was developed, and from that
point forward it has used that device for all its wick
drain installation jobs.1
On April 14, 1986, Mustang signed a limited agree-
ment with the Pile Drivers for the Centrum Office
project, which lasted a month and a half. On this
project, Mustang used traditional pile driving equip-
ment to install wick drains and employed employees
represented by the Pile Drivers Union. On August 27,
1986, Mustang began using the static vibro device to
install wick drains at a project at the Oakland Airport.
For this job, Mustang signed a project agreement with
Laborers Local 304. From that point on, Mustang used
the static vibro machine exclusively to install wick
drains, and employed employees represented by the
Laborers Union to perform the work in front of that
machine.2
In April 1990, Mustang installed wick drains in the
first of a two-phase project located in Novato, Cali-
fornia, identified as Project 36. During this phase, the
Pile Drivers filed a grievance against Mustang for
using nonunion labor, and the grievance was upheld on
July 24, 1990, by an arbitrator. (Mustang did not ap-
pear at the arbitration hearing.) On July 28, 1990, the
United States District Court for the Northern District
of California denied Mustang’s motion to dismiss and
affirmed the arbitrator’s award.3
In April 1991, Mustang signed a master agreement
with the Northern California District Council of Labor-
ers and began work at the second phase of the Novato
job, known as Project 44. Also in April 1991, Mustang
was installing wick drains at a project in Rio Vista,
California. On May 2, 1991, the Pile Drivers filed a
grievance against Mustang pursuant to its master
agreement claiming that Mustang had non-Pile Drivers
employees performing Pile Drivers’ work at the Rio
Vista jobsite. Mustang’s president, Foster, testified that
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Foster testified that Laborers official Don Payne reiterated this
threat shortly thereafter.
the Pile Drivers had also made several verbal claims
for the wick drain work. In June 1991, Foster, during
a visit from Laborers official Koenig, explained the
pressure he was receiving from the Pile Drivers and
asked that the Laborers would so if he changed the as-
signment of the disputed work from the Laborers to
the Pile Drivers. Koenig’s reaction was to threaten
Mustang with picketing if Foster changed the assign-
ment of the wick drain work.4 Foster filed the instant
charge after having received that threat.
B. Work in Dispute
The parties did not stipulate to the work in dispute.
The Laborers refused to stipulate because its position
is that there is no dispute. The notice of hearing de-
scribed the disputed work as ‘‘all work involving the
cutting of soil drainage wicks installed by Mustang
Construction, Inc. at its construction sites located in
Northern California.’’ The hearing officer described
the work the same way; however, Mustang claims in
its brief that the work in dispute actually concerns the
loading, cutting, and handling of the wicks and associ-
ated equipment. We find, based on the testimony ad-
duced at the hearing, that the work in dispute should
be defined as ‘‘all work involving the cutting and the
re-anchoring of the soil drainage wicks when the wicks
are installed by the static vibro machine.’’
C. Contentions of the Parties
Mustang contends that there is reasonable cause to
believe that the Laborers violated Section 8(b)(4)(D) of
the Act by threatening to picket should Mustang
change the assignment of work to employees rep-
resented by the Pile Drivers, and that the Board must
therefore determine the merits of the dispute. It further
contends that the work in dispute should be awarded
employees represented by the Laborers on the basis of
Mustang’s preference and past practice, its collective-
bargaining agreement with the Laborers, the relative
skills of both groups of employees, and economy and
efficiency of operations.
The Laborers contends that there is no jurisdictional
dispute, as there are no competing claims to the dis-
puted work. In the event the Board finds there to be
a jurisdictional dispute, the Laborers asserts that the
work should continue to be assigned to employees it
represents, in accordance with the preference of the
employer, the parties’ collective-bargaining agreement,
past practice, and the considerations of economy and
efficiency.
The Pile Drivers did not appear at the hearing.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
As discussed above, testimony was presented in this
case that the Laborers threatened to picket Mustang’s
jobsites if the disputed work were reassigned to the
Pile Drivers. There was also testimony that the Pile
Drivers, in addition to making verbal claims to the
work in dispute, filed a grievance against Mustang on
May 2, 1991, protesting the assignment of the work at
the Rio Vista jobsite. Thus, we find reasonable cause
to believe that there are competing claims for the work
and that a violation of Section 8(b)(4)(D) has occurred.
We also find that no agreed method for voluntary ad-
justment of the dispute exists within the meaning of
Section 10(k) of the Act. Accordingly, we find that the
dispute is properly before the Board for determination.
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 the dispute.
1. Certifications and collective-bargaining
agreements
There are no certifications in this case applicable to
the work in dispute. Mustang and the Laborers are par-
ties to a master collective-bargaining agreement which
encompassed the work in dispute and is not limited to
any particular project. Mustang signed an agreement
with the Pile Drivers in 1986 for the Centrum Office
project, but Foster testified that it was understood to
cover that project only and that it expired at the com-
pletion of that project. In light of our award of the
work in dispute, infra, we need not determine whether
Mustang is currently party to a contract with Pile Driv-
ers as well as Laborers covering the work in dispute.
Rather, we assume arguendo that Mustang is currently
party to agreements with both Unions, and we do not
rely on this factor in awarding the disputed work.
2. Company preference and past practice
Foster testified that after Mustang began to use the
static vibro device in the summer of 1986, it used em-
811LABORERS NORTHERN CALIFORNIA DISTRICT COUNCIL (MUSTANG CONSTRUCTION)
5 Laborers Local 1086 (Dentinger, Inc.), 282 NLRB 633, 635
(1987); Electrical Workers IBEW Local 104 (Standard Sign), 248
NLRB 1144, 1146 (1980).
6 Although Mustang asserted that there were also competing claims
to the work at Job 44, Mustang President Foster, when asked di-
rectly whether the Pile Drivers had claimed the work at that site, tes-
tified that it had not.
ployees represented by the Laborers to perform the
wick work in front of that machine. Mustang has never
used employees represented by Pile Drivers to perform
work with the static vibro device, as there is no pile
driving involved. He also stated that Mustang has been
satisfied with the work performed by these employees
and that he prefers to continue to assign the work to
employees represented by the Laborers. We find the
factor of company preference and past practice favors
an award of the work in dispute to the employees rep-
resented by the Laborers.
3. Area and industry practice
C. Russel Joiner, president of Geotechnics America,
Inc., the developer of the static vibro device, testified
that Geotechnics and Mustang are the only companies
in the United States currently using the static vibro de-
vice to install wick drains. He also testified that
Geotechnics customarily assigns the disputed work to
employees represented by the Laborers. Under these
circumstances, we find that these factors favor an
award of the disputed work to employees reresented by
the Laborers.
4. Relative skills
It appears that both the employees represented by
the Laborers and the employees represented by the Pile
Drivers possess the requisite skills for performing the
work in front of the static vibro machine. Foster testi-
fied that he considers employees represented by the
Pile Drivers to be ‘‘overskilled’’ to perform the work,
and that the employees represented by the Laborers are
performing the work in a skillful and competent man-
ner. This factor does not support an award of the work
to either group of employees.
5. Economy and efficiency of operations
Foster testified that it is more efficient to use em-
ployees represented by the Laborers because the La-
borers’ agreement calls for only one person in front of
the machine. He also testified that his understanding is
that the Pile Drivers’ agreement calls for a crew of
four or more people. There is contrary evidence. This
factor favors an award of the disputed work to employ-
ees represented by the Laborers
6. Arbitration awards
In 1990 an arbitrator upheld a grievance of the Pile
Drivers concerning Mustang’s assignment of the dis-
puted work at another of its jobs, i.e., Project 36. The
Employer chose not to participate in that arbitration
and has challenged the award in the courts. More sig-
nificantly, the Laborers was not a party to that arbitra-
tion and there is no evidence that it agreed to be bound
by the results. Accordingly, the arbitrator’s award is
not binding on the Board.5
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of company pref-
erence and past practice, industry practice, and econ-
omy and efficiency of operations. In making this deter-
mination, we are awarding the work to employees rep-
resented by the Laborers, not to that Union or its
members.
Scope of the Award
Mustang has requested a broad work award, cov-
ering work at all its construction sites located within
the geographic scope of the Laborers agreement, that
is, the 47 northern California counties specified in that
agreement. We find such an award inappropriate. The
labor organization which engaged in the 8(b)(4)(D) co-
ercion—the Laborers—is the organization that rep-
resents the employees to whom we are awarding the
work and to whom Mustang wishes to continue to as-
sign it. The other labor organization—the Pile Driv-
ers—has engaged in no unlawful activity, nor has it in-
dicated any proclivity to do so. In such circumstances,
the Board has declined to issue an areawide award.
See Carpenters Ventura County District Council (C &
W Fence), 296 NLRB 1091 (1989), and cases cited
therein. Accordingly, the award is limited to Mustang’s
work at the Rio Vista jobsite, the only jobsite for
which there is evidence of competing claims for the
work.6
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees represented by the Northern California
District Council of Laborers, Laborers’ International
Union of North America, AFL–CIO are entitled to per-
form the work involving the cutting and reanchoring of
the soil drainage wicks when the wicks are installed by
the static vibro machine, for Mustang Construction,
Inc., at it Rio Vista, California jobsite.