Laborers' International Union, Local 43

National Labor Relations Board - Board Decisions

Jan 29, 1975

216 N.L.R.B. 339 (N.L.R.B. 1975)

LABORERS ' INTERNATIONAL UNION, LOCAL 43
Laborers' International Union of North America,
Local 43, AFL-CIO and Skogman Construction
Company of Iowa and Elick Construction Co., Inc.
and Welsh & Welsh Construction Company and
United Brotherhood of Carpenters and Joiners,
Local308
Chauffeurs, Teamsters and Helpers Union Local 238,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and Skogman Construction Company of
Iowa and United Brotherhood of Carpenters and
Joiners, Local 308. Cases 18-CD-170, 18-CD-
170-3, 18-CD-170-4, and 18-CD-170-2
January 29, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Skogman Construction Compa-
ny of Iowa, herein called Skogman; Elick Construc-
tion Co., Inc., herein called Elick; and Welsh &
Welsh Construction Company, herein called Welsh,
alleging that Laborers' International Union of North
America, Local 43, AFL-CIO, herein called Labor-
ers, has violated Section 8(b)(4)(D) of the Act.
Skogman also filed charges against Chauffeurs,
Teamsters and Helpers Union Local 238, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called Teamsters, alleging that it had violated
Section 8(b)(4)(D) of the Act.
The cases were consolidated and a hearing was
heldbefore Hearing Officer Frank E. Kapsch, Jr., on
July 24, 25, and 26, 1974, in Cedar Rapids, Iowa. All
parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues . Thereafter briefs were filed by the
Laborers and the Carpenters.
Pursuant tp the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The rulings of the Hearing Officer are free from
prejudicial error and are hereby affirmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
I All three Employers involved herein are members of the Cedar Rapids
Home Builders Bargaining Association which has a current contract with
216 NLRB No. 57
1. BUSINESS OF THE EMPLOYERS
339
The parties stipulated, and we find, that Skogman,
Elick, and Welsh, Employers and Charging Parties
herein, are Iowa corporations engaged in the con-
struction of residential and/or multiple unit dwell-
ings, with Skogman also engaged in grading, excavat-
ing, and the installation of sewer and water lines.
During the past calendar year, each Employer
stipulated to the purchase of goods from outside the
State of Iowa of an amount in excess of $50,000.
Accordingly, we find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Laborers, Teamsters, and the United Brotherhood of
Carpenters and Joiners, Local 308, herein called
Carpenters,' are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Background Facts
All three Employers are engaged in the construc-
tion of residential and/or multiple unit dwellings in
the Cedar Rapids, Iowa, area. The Cedar Rapids
Home Builders Association, of which the Employers
are members, was formed in the winter of 1972 and
its current contract with the Carpenters was the first
negotiated. The contract with the Carpenters specifi-
cally authorizes the Employer to hire a carpenter's
helper who is to be paid at least 50 percent of the
journeyman rate. Pursuant to this contract, the
Employers have generally assigned jobsite cleanup
work and the removal of scrap, the work in dispute,
to employee members of the Carpenters.
On or about June 13, 1974,2 the Laborers and the
Teamsters commenced picketing at Skogman's Ho-
over Place construction site . Over the next 2 weeks,
one, and in some cases both, of the Unions picketed
almost all of Skogman's jobsites within the Cedar
Rapids area. The picketing caused a work stoppage
for all, except that employee members of the
Carpenters crossed the picket lines and continued to
work. The picket signs used by each of the Unions
indicated on their face that Skogman was jeopardiz-
ing wages, hours, and working conditions established
in the area by each of the respective picketing
Unions.
On June 14, 1 day after the commencement of the
picketing, Skogman and its attorneys met with
representatives of the Laborers and Teamsters to
the Carpenters.
2 Unless otherwise indicated , all dates refer to 1974.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss how the picketing could be stopped. Repre-
sentatives from both picketing Unions indicated
during that meeting that the picketing would cease
immediately if Skogman signed labor agreements
with each of the respective Unions and thereafter
assigned the work in dispute herein to employee
members of said Unions.
The record indicates that Elick was picketed on or
about June 20 by the Laborers. The language on the
signs indicated that Elick was jeopardizing the wages,
hours, and working conditions established in the area
by the Laborers. The business agent for the Laborers
admitted authorizing the picketing and justified his
actions on the basis of a report that he had received
from a member of his local to the effect that Elick
was employing individuals who were allegedly
performing Laborers work but who were receiving
wages significantly under those established by the
Laborers within the area.3 The picketing at the Elick
worksite continued for about 1 week and also
involved picketing of a gate reserved for employees
of Elick's subcontractors. Elick agrees that the Union
made no direct oral or written claims for the work,
but, because of the picketing at the Skogman sites
and the timing, geographic proximity, and related
nature of Elick's operation to Skogman's, Elick
assumed that the Laborers reason for picketing was
the same as that which it had previously indicated to
Skogman.
The Laborers commenced picketing against Welsh
on or about June 20, again using picket signs which
alleged that Welsh was jeopardizing wages, hours,
and working conditions as established in the area by
the Laborers. Pickets were also stationed at a gate
reserved for employees of Welsh's subcontractors.
Welsh's owner admitted that the Laborers made no
demands for a reassignment of the disputed work.
Welsh filed the charge against the Laborers for the
same reasons as those mentioned by Elick's repre-
sentative.
B. Work in Dispute
The work in dispute is the jobsite cleanup work and
removal of scrap from the Employers' residential
construction sites.
C. Contentions of the Parties
The Employers contend that , under the provisions
of their current agreement with the Carpenters, they
are free to assign whatever work tasks they deem
s The record indicates that Elick did not employ a carpenter's helper at
the time the picketing commenced.
4 The Laborers Exh. I is a letter dated April 1, 1949, received from the
American Federation of Labor setting forth the character of work to be
performed by laborers . The letter states, in pertinent part , that laborers'
appropriate to employee members of the Carpenters.
The Employers further state that their agreement
with the Carpenters specifically provides for the
employment of a carpenter's helper. The carpenter's
helper is to familiarize himself with the work of
carpenters and to perform the disputed work. In
accordance with the existing contract with the
Carpenters, the Employers have assigned all of the
tasks currently in dispute to employee members of
the Carpenters.
The Carpenters contends that, by tradition, area
practice, and the terms of its current labor agreement
with each of the three Employers involved herein, its
member employees are required to perform any and
all tasks on the worksite which may be assigned to
them, including the removal of scrap and debris, the
handling of materials, such as lumber, on the
worksite; and, when the requirement arises, the
driving of the debris removal vehicle referred to as a
packer truck, trash truck, and/or garbage truck when
said vehicle is operating within the confines of the
worksite. In its brief, the Carpenters also contends
that the job skills required to perform the disputed
work are not unique to any of the Unions involved
herein. The contract between the Carpenters and the
Employers, by specifically providing for a carpenter's
helper, affords the Employers a lesser wage rate for
the work in dispute. Further, the Carpenters main-
tains that the Laborers did not contest the perfor-
mance of the work by carpenters in the homebuilding
industry until said work was assigned to the
carpenter's helper.
The Laborers stated that they were claiming all site
cleanup work, all unloading and stockpiling of
lumber, and any other work being performed at the
Employers' projects which would fall within the
jurisdictional charter4 of its International. In its
brief, the Laborers contends that it picketed the
Employers only to publicize the substandard wages
paid by the Employers to members of rival unions
and to exert pressure on the Employers to pay wages
in line with area standards, but if the Board finds
that a dispute exists under Section 10(k) of the Act
the disputed work should be awarded to employee
members of the Laborers.
Counsel for the Teamsters, the three Employers,
and the Carpenters stipulated that the scope of the
dispute in Case 18-CD-170-2 is limited to Skogman
and the on-worksite driving of a trash removal
vehicle. The Teamsters contends that the driving of
such a vehicle, both on and off the Employers'
duties include:
tending to carpenters, tending to and mixing of all material for
plastering, whether done by hand or any other process, clearing of
debris from buildings....
LABORERS' INTERNATIONAL UNION, LOCAL 43 341
worksite, is solely within its jurisdiction. In early
September , the Board received letters from counsel
representing Skogman and the Teamsters indicating
that an agreement had been reached which resolved
the issue in Case 18-CD-170-2 between the Team-
sters and Skogman . Counsel for the Carpenters
confirmed this by letter of December 9 saying that
the dispute with respect to the "packer truck" or
"trash hauling truck" had been voluntarily adjusted.
In the circumstances, it appears that the issue in Case
18-CD-170-2 is now moot and we shall quash the
notice of hearing with respect to it.5
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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.
The record indicates that the Laborers picketed
construction sites of all the Employers involved
herein . The record also indicates that, at the June 14
meeting between Skogman , the Laborers, and the
Teamsters, representatives from both Unions stated
that the picketing would cease if Skogman signed a
labor agreement with the respective Unions and
thereafter assigned the disputed work to employee
members of said Unions. At the hearing the Laborers
claimed all the disputed work in its jurisdictional
charter.
Based on the evidence presented , we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
in Cases 18-CD-170, 170-3, and 170-4 is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors .6
We shall set forth below those factors which we
find relevant in determining the dispute herein.
1. Certification and collective-bargaining
agreements
There has been no evidence that the labor
organizations involved herein have been certified by
the Board, nor is there evidence indicating that a
Board certification covers the disputed work.
Neither Elick nor Welsh has a contract with the
Laborers . Skogman has a current labor agreement
5 See Printing and Paper Trades Auxiliary Workers , Local No 520, AFL_
CIO (The Cuneo Eastern Press), 168 NLRB 531, 532 (1%7).
6 N.LRB. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
with the Laborers involving only its sewer and water
division. Each Employer involved herein is a member
of the Cedar Rapids Home Builders Association
which has a current agreement with the Carpenters.
The work of carpenter's helper under that contract
apparently includes all of the work in dispute in this
case.
We therefore find that the contract with the
Carpenters favors the Employer's assignment.
2. Employers practice
The Employers presented evidence to indicate that
in the past carpenters themselves performed the
disputed work, but as their current contract with the
Carpenters provides for a carpenter's helper, the
Employers contend that these helpers should be
assigned such work.
We find therefore that this factor favors awarding
the disputed work to employees represented by the
Carpenters.
3. Area practice
The Laborers presented two witnesses engaged in
construction in the area who testified to using
laborers for cleanup work; one, however, admitted
on cross-examination that a large portion of his
business was commercial buildings and a current
condominium project was the only residential work
he had done in the last 5 years; the other admitted
that 80 percent of his work is commercial. Another
builder of homes and apartments, who has a contract
with the Laborers, testified that he uses laborers to
clean up (unless carpenters do it by reason of
immediate hazard) and take "it to the parking" and
he then subcontracts the hauling away.
The Carpenters called an assistant business agent
for Local 308 who "believed" that carpenters had
always done their own cleanup and he had never
seen any laborers around homesites, except in one
instance.
We find that this factor tends to favor awarding the
disputed work to employees represented by the
'Carpenters.
4. Awards of Joint Board
The Laborers submitted two awards from the
National Joint Board granting work to employees
represented by the Laborers rather than those
represented by the Carpenters. The Carpenters
challenged the relevancy of these awards on grounds
that the dispute therein involved construction sites
Broadcasting System], 364 U.S. 573 ( 1961); International Association of
Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company),
135 NLRB 1402,1410-11 (1%2).
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located in Washington and Ohio and that the work
in dispute was that of distributing drywall to
stockpiles and unloading lumber.
We thus find that this factor favors neither the
Laborers nor the Carpenters.
5. Extent of award
At the hearing the Employers moved to expand the
scope of the award to include all of their residential
construction sites in Linn , Benton , and Jones
Counties, Iowa, urging the broad award as coexten-
sive with the geographical jurisdiction of the Carpen-
ters . The Laborers opposes the broad award.? We
note that no evidence was offered on behalf of the
Employers demonstrating the need for an award
broadened in scope. We shall therefore make an
award limited to the Cedar Rapids jobsites which
gave rise to this proceeding , as is customary.
Conclusion
Upon consideration of all pertinent factors in the
entire record , we conclude that employees represent-
ed by the Carpenters, rather than the Laborers, are
entitled to perform the work in dispute. In reaching
this conclusion we have taken particular note of the
evidence of the Employers' assignment to the
Carpenters, the fact that such assignment is generally
in accord with the Employers' past practice, and the
existence of the bargaining agreement between the
Employers, through the Cedar Rapids Home Build-
ers Bargaining Association, and the Carpenters. In
making this determination, we award the work to the
employees of the Employers who are represented by
the Carpenters, but not to that Union or its members.
Our present determination shall cover only the
r At the hearing the Laborers and the Teamsters filed a motion for
continuance to prepare for response to the request of Employers. The
Regional Director denied the motions and the Unions appealed to the
Employers' residential construction sites in the Cedar
Rapids, Iowa, area which were picketed.
DETERMINATION OF THE 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
makes the following Determination of Dispute:
1. Employees of Skogman Construction Compa-
ny of Iowa, Elick Construction Co., Inc., and Welsh
& Welsh Construction Company, who are currently
represented by the United Brotherhood of Carpen-
ters and Joiners, Local 308, are entitled to perform
the jobsite cleanup work at the Employers' jobsites in
Cedar Rapids, Iowa, which gave rise to this proceed-
ing.
2. Laborers' International Union of North Amer-
ica, Local 43, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) to force or require
the above Employers to assign the above work to
employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers' Interna-
tional Union of North America, Local 43, AFL-CIO,
shall notify the Regional Director for Region 18, in
writing, whether or not it will refrain from forcing or
requiring the Employers, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute in a manner inconsistent with the above
determination.
The notice of hearing herein, insofar as it relates to
Case 18-CD-170-2 involving Employer Skogman's
packer truck or trash hauling truck, is hereby
quashed.
Board . Prior to the end of the hearing, the Board granted the continuance,
but both Unions withdrew their motions.