Laborers, Local 223

National Labor Relations Board - Board Decisions

Jun 10, 1974

211 N.L.R.B. 259 (N.L.R.B. 1974)

LABORERS , LOCAL 223
Laborers International Union of North America, Local
223 and J. Slotnik Company and United Brother-
hood of Carpenters and Joiners of America, Local
67. Case 1-CD-376
June 10, 1974
.DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by J. Slotnik Company, hereinafter
called Employer or Slotnik, alleging that Laborers
International Union of North America, Local 223,
hereinafter called Laborers, violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign certain work to
employees represented by Labors rather than to
employees represented by United Brotherhood of
Carpenters and Joiners of America, Local 67,
hereinafter called Carpenters.
Pursuant to notice, a hearing was held before
Hearing Officer Francis X. McDonough on Novem-
ber 16, 1973, and January 30, 1974. 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
Employer and Laborers.
Pursuant to 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 Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board made the following findings:1
I. THE BUSINESS OF THE EMPLOYER
The Employer, J. Slotnik Company, is a Massachu-
setts corporation, engaged in business as a general
building contractor with its principal place of
business at 99 Chauncy Street, Boston, Massachu-
setts. It annually receives building materials directly
from points outside the Commonwealth of Massa-
i The Laborers request to reopen the hearing to permit inquiry into the
practice of stripping by Ceco , the slab subcontractor at the Faulkner site, is
hereby denied . As the Hearing Officer correctly ruled , the stripping in
connection with reinforced concrete slabs (floors) is not the same as the
work here in dispute and hence has no relevance to this proceeding.
2 The Board has previously asserted jurisdiction over this Employer in
259
chusetts, the value of which exceeds $50,000. The
parties stipulated, and 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.2
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Laborers
and Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the stripping of
forms from walls, beams , and columns at the
Employer's Faulkner Hospital construction project
in Jamaica Plain , Massachusetts.
B. Background
The Employer is the general contractor for the
construction of phase II of a superstructure at the
Faulkner Hospital in Jamaica Plain, Massachusetts.
This phase of the construction involves the necessary
construction work from the foundation to the roof of
the building. The superstructure is the frame of the
building, that is, the outside shell. The beams, walls,
columns, and slabs are concrete, most of which will
be architecturally exposed. The Employer's presi-
dent, Joseph Michaelson, explained the work process
as follows: "The form is put up and the form is
preassembled and prefabbed on the jobsite using
plywood and dimensional lumber. It is then erected
in place, reinforcing steel is set into it. The concrete
is poured and after the concrete has attained its
sufficient strength, the form is removed." After the
forms are removed, they are cleaned, oiled, and
placed in a stockpile for reuse. The latter process,
called tendering, is not here in dispute.
To perform the work at the Faulkner site, the
Employer hires employees of various trades includ-
ing those represented by Carpenters and Laborers
with each of whom the Employer has a current
collective-bargaining agreement by virtue of its
membership in Associated General Contractors of
Massachusetts (herein called AGC).
The Employer commenced work at the Faulkner
site on or about August 2, 1973,3 and the disputed
work began on or about August 20 or 27 .4
There is some dispute as to which trade was
Local No. 17, Sheet Metal Workers International Association (J. Slotnik
Company), 197 NLRB 1127.
3 All dated are in 1973 unless otherwise indicated.
" The Employer did not have a prejob conference before beginning the
work and, according to Michaelson, it is the Employer's practice not to have,
such conferences unless specifically requested . Here no such request was
made.
211 NLRB No. 28
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
originally awarded the disputed work. The Employ-
er's president, Michaelson, and Carpenters job
steward, Patrick Murphy, testified that all of the
stripping work on beams, columns, and walls was
assigned to employees represented by Carpenters,
and that these employees have consistently per-
formed this work. The Laborers job steward, Thomas
Beatty, on the other hand, testified that the work of
stripping was assigned to a composite crew of 50
percent carpenters and 50 percent laborers. Several
laborers on the jobsite also testified that they
performed some of the stripping functions side by
side with carpenters. As stated, there is no dispute
about the work of tendering which was assigned to
laborers.
On October 10, Patrick Walsh, secretary-treasurer
and field representative of the Laborers, appeared at
the jobsite and questioned the Employer's superin-
tendent, James Cotter, concerning the assignment of
the disputed work to carpenters. According to
Michaelson, Walsh asked Cotter to change the
assignment of the work to a composite crew of
carpenters and laborers and Cotter refused. On the
following day, October 11, Michaelson arrived at the
jobsite at approximately 8:30 a.m. and saw his
employees represented by Laborers milling about
and not working. Carpenters Representatives Fred
Fletcher and John McSharry, Laborers Representa-
tive Walsh, and Superintendent Cotter were also
present. At this time, Walsh demanded that the
Employer reassign the disputed work to a composite
crew and threatened to pull the laborers off the job if
such assignment were not made. There was a brief
work stoppage and Michaelson warned Walsh that
he was violating the no-strike provision of Laborers
contract with AGC. Walsh replied that the only way
he could enforce the work assignment to the laborers
was by pulling them off the job. Following a
telephone conversation between Walsh and McNally
of the AGC, the laborers returned to work. On
Friday, October 12, Slotnik filed the instant unfair
labor practice charge with the Board's Regional
office. On Monday, October 15, Laborers com-
menced a work stoppage at the Faulkner site which
continued until October 29. On the morning of
October 15, a meeting was held at the jobsite
between Michaelson, Cotter, McNally, Walsh, and
Dunne, another Laborers business representative,
during which Laborers again demanded that the
work of stripping beams, walls, and columns be
assigned to a composite crew made up of 50 percent
carpenters and 50 percent laborers. The Employer
refused and the strike continued until October 29.5
C. Contentions of the Parties
The Employer contends that the work in dispute
should be assigned to employees represented by
Carpenters for the following reasons: (1) the Em-
ployer originally assigned the work solely to carpen-
ters and is satisfied with their work; (2) the
assignment was made without a prejob conference
and without objection from Laborers; (3) the
Employer's practice in the Boston area is to assign
this work to carpenters only; (4) the carpenters are
charged with erecting the forms and consequently
possess greater skill in removing them without
causing substantial damage either to the forms,
which are reusable, or the architecturally exposed
concrete; and (5) if the work is reassigned to a
composite crew, the Employer would be forced to lay
off some carpenters and to hire additional laborers.
Carpenters agrees with the Employer's contention,
stressing that the assignment to carpenters is consist-
ent with the Employer's practice, the area practice,
and the collective-bargaining agreement between
Carpenters and the Employer.
Laborers, on the other hand, contends that the
disputed work should be assigned to a composite
crew of 50 percent laborers and 50 percent carpen-
ters because: (1) the original assignment was made,
at least in part, to laborers and subsequently was
changed on or about October 10 pursuant to pressure
by Carpenters; 6 (2) the collective-bargaining agree-
ment between Laborers and the Employer requires
assignment of the disputed work to a composite
crew; (3) the recommended policy of the AGC, of
which Slotnik is a member, calls for the assignment
of the work to a composite crew; 7 (4) the area
practice is to assign the work to a composite crew;
and (5) laborers are more economical to use and are
equally as skilled as carpenters to perform the work.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
3 A petition for an injunction under Sec. 10(1) of the Act was filed by the
Regional Director for Region I on October 24 and a hearing thereon was
held before Judge Freeman in the Federal District Court in Boston on
October 26. Judge Freeman counseled Slotnik and Laborers to resolve their
dispute by noon on October 29 or return to the courtroom at that time for
final disposition of the 10( 1) petition . Laborers returned the men to work by
noon on October 29.
6 We take administrative notice of the fact that on October 12, 1973,
Laborers filed a charge in Case l-CD-380 alleging that, since October 10,
1973, Carpenters has engaged in conduct violative of Sec. 8(b)(4)(D) of the
Act at the Faulkner site. Upon investigation , the Regional Director for
Region I dismissed the charge . Laborers appeal of the dismissal to the
General Counsel was denied on January 16, 1974.
7 Slotnik , however, is not obligated to follow this policy.
LABORERS, LOCAL 223
and (2) the parties have not agreed upon any method
for the voluntary adjustment of the dispute.
As • to (1) above, the record establishes that
Laborers threatened to picket, and picketed, the
Employer's Faulkner Hospital jobsite from October
15 to 29. The record further establishes that such
picketing was to protest Slotnik's assignment of the
disputed work to a crew composed entirely of
employees represented by Carpenters, rather than a
crew composed of 50 percent carpenters and 50
percent laborers. Accordingly, we find that reasona-
ble cause exists to believe that Laborers violated
Section 8(b)(4)(D) of the Act.8
With respect to (2) above, the parties agreed and
the record establishes that there is no agreed-upon
method, to which all of the necessary parties to the
dispute are bound, for the voluntary adjustment of
the dispute and that the matter, therefore, is properly
before the Board for resolution .9
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various relevant factors.
1. Certifications and collective-bargaining
agreements
Neither labor organization has been certified to
represent the Employer's employees who perform the
work in dispute. The Employer, by virtue of its
membership in AGC, has collective-bargaining
agreements with both Laborers and Carpenters. The
agreement with Carpenters provides for the assign-
ment of the disputed work to employees covered by
that agreement only. The agreement with Laborers
provides that the disputed work shall be performed
by a composite crew consisting of laborers and
carpenters. Accordingly, we find that the parties'
collective-bargaining agreements are not dispositive.
2. The Employer's past practice
The record shows that it is the Employer's policy
within the Boston area to assign the disputed work to
its employees who are represented by Carpenters.
Michaelson testified , without contradiction, that the
assignment to carpenters on the Faulkner job was
consistent with the Employer's practice . This eviden-
ce, in our view, favors assignment of the disputed
work to Carpenters.
8 See International Association of Bridge, Structural and Ornamental Iron
Workers, Local 348, AFL-CIO (Dick Tile and Marble Company, Inc), 193
NLRB 769, 770.
3. Area practice
261
Carpenters and Laborers each adduced evidence
that the practice of employers in the Boston area
with respect to the work in dispute favored assigning
such work to employees represented by it. From the
evidence adduced on this subject , it cannot be found
on this record that the area practice clearly favors
either the Laborers or the Carpenters.
4. Relative skills, efficiency, and economy
The Employer contends that, despite wage differ-
entials between Carpenters and Laborers, the need to
reuse the form material without extensive refabrica-
tion makes the use of carpenters more economical
for the stripping operation. These forms cost approx-
imately $5 per square foot to construct and the
Employer, for economical reasons , plans to reuse
these panels approximately eight times during the
course of the construction at the Faulkner site. For
these reasons, among others, the Employer claims
that it is crucial that the employees removing, i.e.,
"stripping," the forms be skilled in the carpentry
trade. Furthermore, the Employer argues that, as the
forms are initially erected by carpenters, they are
better qualified to remove them from the concrete
without undue damage to either the forms or the
concrete which will be architecturally exposed. In
addition, the tools used in stripping are the tradition-
al carpenter tools of hammer, stripping bar, and
wrenches. The Employer also contends that it would
be inefficient in its overall operation to assign even a
part of the stripping work to laborers, inasmuch as
this would require it to lay off some of its carpenters.
The Employer asserts that it maintains a relatively
stable crew of carpenters who are proficient in many
facets of the Employer's operations, not just strip-
ping, in which they can be utilized on the job when
they are not performing stripping work.
Laborers contends that no special gift is required to
perform the work in dispute and that employees
represented by it possess the necessary skills to
perform such work without damaging either the
forms or the concrete.
While it appears from the record that both
carpenters and laborers possess the necessary skills
to perform the disputed work, we find that the
evidence of efficiency and economy supports the
Employer's assignment of the work to its employees
who are carpenters.
9 N LR B v. Plasterers' Local Union No. 79, Operative Plasterers' &
Cement Masons' International Association, AFL-CIO [Southwestern Con-
struction Co.], 404 U.S. 116 (1971).
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
Upon the entire record in this case, we conclude
that Slotnik's employees who are represented by
Carpenters are entitled to the work in dispute. We
reach this conclusion based on Slotnik's past practice
of assigning such work to carpenters, the fact that
such assignment is consistent with the practice
followed by several Boston area contractors, the fact
that Slotnik 's carpenter employees possess sufficient
skills to perform the work, and the fact that such
assignment will result in greater efficiency and
economy of operations. Accordingly, we shall deter-
mine the dispute by awarding the work in dispute to
Slotnik's employees represented by Carpenters, but
not to any labor organization of which these
employees are members . In consequence , we find
that Laborers is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Slotnik to assign the disputed work to employees
represented by it.
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
makes the following Determination of Dispute.
1. Employees of J. Slotnik Company who are
represented by United Brotherhood of Carpenters
and Joiners of America, Local 67, are entitled to
perform the following work:
Stripping of forms from walls, beams, and
columns at the Employer's Faulkner Hospital
construction project in Jamaica Plain, Massachu-
setts.
2. Laborers International Union of North Ameri-
ca, Local 223 is not entitled , by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require J.
Slotnik Company to assign the above-described work
to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Laborers Internation-
al Union of North America, Local 223, shall notify
the Regional Director for Region 1, in writing,
whether or not it will refrain from forcing or
requiring J. Slotnik Company to assign the work in
dispute to employees represented by United Brother-
hood of Carpenters and Joiners of America, Local
67.