Local Union No. 42, Laborers

National Labor Relations Board - Board Decisions

Jul 28, 1970

184 N.L.R.B. 686 (N.L.R.B. 1970)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 42, Laborers International Union
of North America , AFL-CIO and R . B. Cleveland
Company and St . Louis District Council , United
Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO. Case 18-CD-333
July 28, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by R. B. Cleveland Company
(herein the Employer), alleging that Local Union
No. 42, Laborers International Union of North
America, AFL-CIO (herein the Respondent or the
Laborers), violated Section 8(b)(4)(D) of the Act.
A duly scheduled hearing was held before Hearing
Officer Neil E. McDarby, on November 21 and
December 2, 1969. All parties were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses , and to adduce evidence bearing
upon the issues. Thereafter, the Employer, the
Respondent, and St. Louis District Council, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (herein the Carpenters), party to the
contract, filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with this case 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 af-
firmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated as follows:
The Employer, a Missouri corporation, is en-
gaged, in the city of St. Louis, Missouri, and its en-
virons, in the construction business as an accousti-
cal contractor. During the past year the Employer,
in the course and conduct of its business opera-
tions, purchased acoustical tile and other materials
valued in excess of $50,000, which tile and materi-
als were shipped directly to it in the State of Mis-
souri from suppliers in States other than the State
' Absent allegations of threats and absent credibility findings , we decline
to consider controverted testimony , denied by Huhhan , that on this and
other occasions during the course of the background events herein
of Missouri. 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 the
Laborers and the Carpenters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background of the Dispute
The Employer is the subcontractor for the instal-
lation of all acoustical tile at the 30-story Laclede
Gas Building project site on Eighth Street between
Olive and Pine Streets in St. Louis, Missouri. Its
work force includes 22 carpenters, 2 truckdrivers,
and I sheet metal worker. Since it commenced
operations some 15 years ago, the Employer has as-
signed all acoustical tile work, including the loading
and distributing thereof, to employees represented
by the Carpenters. °
On September 8, 1969, John Hulihan, the
Laborers steward at the jobsite, approached Ed-
ward C. Cleveland, the Employer's vice president,
and asked him not to permit employees represented
by the Carpenters to unload a truckload of acousti-
cal tile, on the ground that this was work belonging
to employees represented by the Laborers. Cleve-
land replied that the work had always been per-
formed by carpenters represented by the Carpen-
ters. When Cleveland ordered the Carpenters to
commence unloading the tile, Hulihan said
something to the hoist operator on the job.
Thereafter, the hoist, onto which only two pallets of
material had been unloaded, ceased operations.
Hulihan admitted asking Cleveland not to use the
carpenters on the unloading job, but denied that he
threatened Cleveland with a work stoppage, and
was corroborated by the hoist operator in denying
that he told the latter not to operate the hoist.'
Thereafter, Cleveland, at Hulihan's request, con-
ferred with Cecil Sims, an official of the Laborers
Council, who advised him of a letter from the Na-
tional Joint Board for the Settlement of Jurisdic-
tional Disputes (herein the National Joint Board),
dated July 25, 1969, awarding to the Laborers the
work of unloading acoustical tile at the Famous-
Barr, Northwest Plaza Shopping Center job. Cleve-
land replied that the award specifically applied to
presented he threatened physical harm and work stoppages if the Laborers
were not accorded the work in dispute
LOCAL UNION
that job only, and that on the Laclede job, the Em-
ployer had assigned the job to the Carpenters. A
similar conversation between Cleveland and
Anthony R. Pelker, the Laborers business manager,
likewise produced no agreement . That same after-
noon , Cleveland , in response to an inquiry from
Pleasent Jenkins, then a business representative for
the Carpenters , assured him that the unloading
work had been assigned to the Carpenters. There
was no further unloading work that day.
On September 11, at Pelker 's urging, Cleveland
went to the Laborers office and signed a collective-
bargaining agreement in order , according to Cleve-
land, "to establish a mutual relationship with the
Laborers that in the event in some future time if
work was assigned to the Laborers we would have a
relationship or a mutual relationship with them."
Between September 11 and 25 , the Employer was
unable to deliver material , due to minor confronta-
tions with the Laborers and the Carpenters at the
jobsite. On September 25, the Employer, after con-
siderable pressure from the general contractor,
requested Pelker to send four laborers to the jobsite
on September 26, which he did. As grounds for this
request , Cleveland testified that the Employer did
so because it was "literally forced into the position
of trying to work an agreement out, even to the ex-
tent of employing Laborers to get the material in."
The Employer discharged the laborers at the end of
the day and has never since hired laborers.
On October 3, Hulihan confronted Royal
Kitchen, the Carpenters job steward, with a request
not to move acoustical tile shipments on the ground
that it was Laborers work. Kitchen accomplished
the unloading notwithstanding Hulihan's remon-
strances. On October 6, Hulihan requested Burton
Roark, the Carpenters foreman on the job, to tell
his men to quit moving the acoustical material.
Roark refused.
B. The Work Stoppage of October 9, 1969
On October 8, Cleveland , in anticipation of a
scheduled delivery on the following day, requested
Jenkins to send our additional employees from the
Carpenters hall, notified Pelker of the delivery, and
asked him to be at the jobsite if he wished to re-
gister a complaint over the assignment of the work
to the Carpenters . He further notified the St. Louis
police that there might be some trouble.
On October 9, eight carpenters commenced un-
loading a truck containing about 100 cartons of
acoustical tile. Pelker with 12 laborers approached
them , and a discussion developed . By Pelker's own
admission , a laborer nonemployee got up into the
truck and started unloading it, notwithstanding that
NO. 42, LABORERS 687
two carpenter employees were unloading tile
packages inside the truck . A fight ensued, during
which a considerable amount of tile in the process
of unloading was knocked to the ground from the
employees' shoulders and damaged . The police
quelled the disturbance and directed that there be
no more deliveries until the dispute was settled. No
further deliveries were attempted until November
19, 2 days before the instant hearing . The Em-
ployer has at no time attempted to submit the
dispute to the National Joint Board , having been
advised by the National Acoustical Contractors'
Association , with which it was affiliated , that the
Board was dissolved or inoperative as of September
30, 1969.
C. The Work in Dispute
The dispute concerns the unloading and distribu-
tion of acoustical tile at the Laclede Gas Building
jobsite in St. Louis , Missouri.
D. The Contentions of the Parties
The Laborers contends that there is no jurisdic-
tional dispute cognizable under Section 10(k) of
the Act, because there was an agreed-upon method
of arbitrating the dispute through the National Joint
Board ; that the record does not establish reasona-
ble cause for believing that the Laborers engaged in
conduct violative of Section 8(b)(4)(D) of the Act;
and that the work in dispute should be awarded to
the Laborers. Cleveland and the Carpenters con-
tend , on the contrary, that the agreed-upon method
of arbitrating the dispute was at no time herein
available to the parties, that the record establishes
reasonable cause for believing that the Laborers en-
gaged in conduct violative of Section 8(b)(4)(D),
and that the work in dispute should be awarded to
the Carpenters.
E Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated. As set forth above, uncontroverted
testimony shows that on October 9, 1969 , nonem-
ployees represented by the Laborers, in the
presence of the Laborers business manager, en-
gaged employees represented by the Carpenters in
a fight to prevent the latter from unloading and dis-
tributing acoustical tile at the Laclede Gas Building
jobsite, in order to require the assignment of that
work to workers represented by the Laborers, thus
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly establishing a prima facie case supporting
the alleged violation of Section 8(b)(4)(D). We
find without merit the Laborers contention that the
instant dispute is properly arbitrable before the Na-
tional Joint Board. While it is true that all parties to
the dispute did contractually agree to submit ju-
risdictional work disputes to the National Joint
Board , as the Laborers states, the record evidence
clearly shows that during the critical period from
September 30, 1969, through the completion of the
hearing , on December 2, 1969, the National Joint
Board was inoperative. We therefore conclude that
at no time material to the adjustment of the instant
dispute has the National Joint Board been available
for providing a voluntary method for settling the in-
stant dispute. Accordingly, we find that there is a
reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) of the Act has occurred, and that
the dispute is properly before the Board for deter-
mination under Section 10(k) of the Act.
F. 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 all relevant fac-
tors . In International Association of Machinists,
Lodge No. 1743, AFL-CIO Q . A. Jones Construc-
tion Co. ),' the Board set forth the following criteria
to be considered in the making of an affirmative
award in a Section 10 ( k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in
dispute , e.g., the skills and work involved, cer-
tifications by the Board , company and industry
practice , agreements between unions and
between employers and unions , awards of ar-
bitrators , joint boards , and the AFL-CIO in the
same or related cases , the assignment made by
the employer , and the efficient operation of
the employer 's business.3
1. Work and skills involved
The packaged acoustical tile, of varying types,
textures, and color, with its associated hardware,
arrives at the several jobsite locations in individual
truckloads. The unloading and distribution of the
tile requires a degree of care due to its relatively
fragile character. As the tile is generally moved
directly to its installation area within the Laclede
jobsite, and as the major portion of the installation
work involves small remodeling jobs requiring but a
few carpenters, a knowledge of the installation
' 135 NLRB 1402.
Id. at 14 10-11.
work and worksites, based upon job experience, is
desirable for purposes of unloading and handling
tile.
2. Efficiency of operations
Although generally claiming the work of unload-
ing and distributing acoustical tile, the Laborers at-
tach specific conditions to their claim which in our
opinion could substantially lower the efficiency of
the Employer's current loading and distribution
operations. Thus the Laborers would handle tile
only and would refuse to handle the associated
packaged hardware which regularly accompanies
tile shipments. They would also insist upon dis-
tributing tile to so-called stockpiles, notwithstand-
ing that stockpiling at the Laclede project appears
rare or nonexistent.4 They would not distribute the
tile from stockpiles to installation points on the
iobsite, nor would they claim unloading work of
less than 2 hours' duration. On the other hand, they
would demand a minimum of 4 hours' pay for 15
minutes' work.
An application of the Laborers claim to the work
in dispute could, in our opinion, result in the fol-
lowing foreseeable operating inefficiencies: the en-
listment of dual crews to unload acoustical tile and
associated tile hardware, or whenever stockpiling
occurs; jurisdictional disputes over the definition of
"stockpile"; the burden of timing each unloading to
accord with the Laborers jurisdictional 2-hour time
limit; and the added expense of paying laborers a 4-
hour minimum for 15 minutes' work. Further
foreseeable inefficiencies could arise from the fact
that truck deliveries cannot be scheduled with
precision, due to the multiplicity of unloading
stops, each of varying duration, at the several
jobsite locations during the course of a delivery
trip. This being so, the Employer could be faced
with two alternative wasteful procedures between
loadings, either to permit laborers to ride in the
truck cabs from one unloading site to the next, or
to have them idly await the next delivery at a single
location. Minimum pay demands could add con-
siderably to unloading expenses. Unloading could
be needlessly held up, pending delays in the hiring
or the arrival of laborers. Additionally, there is the
ever-present possibility of jurisdictional labor strife
attendant upon the simultaneous presence of rival
work crews at the same unloading or distribution
site. Still other inefficiencies might stem from the
fact that laborers, with more limited knowledge of
the many individual installation sites and the in-
4 The Employer contends that stockpiling, in the conventional sense of
the term , does not exist at the Laclede jobsite.
LOCAL UNION NO. 42 , LABORERS
dividual requirements of each, might require the
added expense of special briefing and supervision.
The instant record provides no cogent opera-
tional or economic reason for altering the current
apparently satisfactory arrangement of many years'
duration between the Employer and the Carpenters
for the handling and installation of acoustical tile
and associated hardware.
3. Company and industry practice
Except for the above-noted single instance of 1
day's duration, the Company, throughout its 15-
year history, has never hired employees represented
by the Laborers for handling tile or otherwise. The
employment of employees represented by the Car-
penters for handling tile has been the uniform prac-
tice of both the Employer and St. Louis Acoustical
Contractors' Association, of which the Employer is
a member. The Laborers makes no uniform claim
to all of the unloading work at the Laclede project,
but on the contrary has not claimed the work of un-
loading trucks for electrical contractors , plumbing
contractors, or sheet metal contractors , such work
being assigned to Electricians , Plumbers, and Sheet
Metal Workers, respectively. Nor have the
Laborers claimed the unloading of floor tiles used
on the Laclede project.
4. Agreements between the Company and the
Unions
The current contracts between the Company and
the Laborers and Carpenters, respectively, were
negotiated by Associated General Contractors of
St. Louis . Both contracts contain identical language
to the effect that nothing in the agreements shall be
construed to define or determine any craft or work
jurisdiction or the recognition thereof by the Em-
ployer. The Carpenters contract contains a job clas-
sification of journeyman carpenter to which the
Company has assigned the work.
5. National Joint Board awards
As noted above, it appears that as of the time of
the instant hearing, the National Joint Board for the
Settlement of Jurisdictional Disputes was not in ex-
istence. On July 25, 1969, the National Joint Board
awarded identical work to that here in dispute to
the Laborers in a dispute arising on the Famous-
Barr, Northwest Plaza Shopping Center job in St.
Louis County, Missouri. The award, however, ap-
plied to that particular job only, and neither the
Company nor the Carpenters offered any evidence
before the Joint Board.
6. Other agreements
689
There is no agreement between the Laborers and
the Carpenters concerning the proper assignment
of the work in dispute, nor are there any arbitration
awards concerning the same.
Conclusions
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we be-
lieve that the employees of the Employer who are
currently represented by the Carpenters, rather
than individuals represented by the Laborers, are
entitled to the work in dispute. We reach this con-
clusion relying upon the Employer's assignment of
the disputed work to its own employees, the fact
that the assignment is consistent with the Em-
ployer's past practice, the current bargaining con-
tract, the fact that the employees represented by
the Carpenters possess the requisite skills to per-
form the work, and that such an assignment will
promote efficiency and economy of operations. Ac-
cordingly, we shall determine the dispute before us
by awarding the work of unloading and distributing
acoustical tile at the Laclede Gas Building jobsite in
St. Louis, Missouri, to employees represented by
the Carpenters, but not to this Union or its mem-
bers.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of
the foregoing findings and the entire record in this
proceeding , the National Labor Relations Board
hereby makes the following determination of
dispute:
1. Employees of R. B . Cleveland Company who
are currently represented by St. Louis District
Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, are entitled to per-
form the work of unloading and distributing
acoustical tile at the Laclede Gas Building site in
St. Louis, Missouri.
2. Local Union No. 42, Laborers International
Union of North America, AFL-CIO , is not entitled,
by means proscribed by Section 8(b)(4)(D) of the
Act, to force or require R. B. Cleveland Company
to assign such work to individuals represented by
Local Union No. 42.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No. 42,
Laborers International Union of North America,
AFL-CIO, shall notify the Regional Director for
Region 14, in writing , whether or not they will
690 DECISIONS OF NATIONAL
refrain from forcing or requiring the Employer, by
means proscribed by Section 8(b)(4)(D) of the
Act, to assign the work in dispute to individuals
represented by Local Union 42, rather than to em-
ployees represented by St. Louis District Council,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO.
MEMBER FANNING, dissenting:
I would not determine this dispute at this time.
The record shows that the Company at all times has
been party to contracts with both the Laborers and
Carpenters , each of which claims to be entitled to
perform the above -disputed work . The record also
reveals that these contracts specifically provide that
the parties thereto are bound by decisions of the
National Joint Board for the Settlement of Jurisdic-
tional Disputes . At the time the dispute arose and
LABOR RELATIONS BOARD
during the hearing in this case the operations of the
Joint Board had been suspended and it was not
available to the parties for the resolution of their ju-
risdictional dispute . However , the Laborers now
contend that the Joint Board is again in operation
and is again processing jurisdictional disputes, in-
cluding requests for job decisions . Accordingly, the
Laborers urge that the notice of hearing in this case
be quashed.
In view of the foregoing , I would issue a notice to
the parties to show cause why the record in this
case should not be reopened to receive evidence of
the current availability of the Joint Board to resolve
the above-noted dispute , a method which the
parties have voluntarily selected for the resolution
of such disputes and why, if such be shown, this
notice of hearing should not be quashed.