Laborers Local 223 (C.W.C. Builders)

National Labor Relations Board - Board Decisions

Sep 9, 1986

281 N.L.R.B. 367 (N.L.R.B. 1986)

LABORERS LOCAL 223 (C.W.C. BUILDERS)
Local 223, Laborers' International Union of North
America, AFL-CIO (C.W.C. Builders, Inc.) and
Furniture and Piano Moving, Furniture Store
Drivers, Helpers, Warehousemen and Packers,
Local Union No. 82, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case 1-CD-758
9 September 1986
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
The charge in this Section 10(k) proceeding was
filed 3 October 19851 by Furniture and Piano
Moving, Furniture Store Drivers, Helpers, Ware-
housemen and Packers, Local Union No. 82, a/w
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America (the
Teamsters), alleging that Local 223, Laborers'
International Union of North America, AFL-CIO
(the Respondent or the Laborers) violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing C.W.C. Builders , Inc. (the Employer) to
assign certain work to employees the Respondent
represents rather than to employees represented by
the Teamsters . The hearing was held on 12 No-
vember 1985 before Hearing Officer Thomas J.
Morrison.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
fording them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
The Employer, a Massachusetts corporation with
a principal place of business in Boston, Massachu-
setts, is engaged in the business of construction and
building rehabilitation and annually has gross reve-
nues in excess of $50,000 and annually purchases
goods valued in excess of $50,000 directly from
points outside the Commonwealth of Massachu-
setts . 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
the Laborers and the Teamsters are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
' All dates are in 1985.
II. THE DISPUTE
367
A. Background and Facts of Dispute
As noted, the Employer is engaged in the con-
struction and rehabilitation of buildings . Typically,
the Employer will have new appliances installed in
the buildings on which it works . The Employer has
for many years purchased its appliances from G.E.
Hotpoint . The exclusive warehouseman for G.E.
Hotpoint in the geographic area where the Em-
ployer operates is P. J . Casey, Inc. (Casey). G.E.
Hotpoint ships the appliances ordered by the Em-
ployer to Casey , which stores them until the Em-
ployer is ready for delivery. The usual practice for
at least 20 years has been that, on an as-needed
basis, Casey's employees, who are represented by
the Teamsters , deliver the appliances to .the Em-
ployer's jobsite; unload them; then transport, un-
crate, and place the appliances at their point of use
in the building ; and then dispose of the debris.
The Employer 's employees are represented by
the Laborers . On 17 September, Casey's employees
delivered approximately 57 dishwashers to the Em-
ployer's jobsite at the former Baker Chocolate
Company building in Dorchester Lower Mills,
Massachusetts, where the Employer is rehabilitat-
ing the former factory building into apartments.
Laborers Steward Joe Green told the Employer's
supervisor Leonard Finnerty that the work that the
Teamsters had been doing belonged to employees
represented by the Laborers . A short time later,
Laborers Business Agent Pat Walsh arrived and
told Finnerty that he would take the Laborers-rep-
resented employees off the job unless the work was
given to the Laborers . The Laborers-represented
employees then stopped working. The Employer's
president , Benjamin Polishook , during a phone
conversation with Finnerty , instructed Finnerty to
ask Walsh if he would send his men back to work
if the Employer would employ a • laborer to work
alongside Casey's employees . Walsh refused and
the Laborers picketed the rest of the day . Casey's
employees completed their work and nearly all of
the Employer's employees continued working.
On 18 September the Laborers again picketed
the jobsite. Most of the Employer's other employ-
ees did not cross the picket line. No deliveries from
Casey were scheduled for that day and none were
made.
Also on 18 September , Polishook met with
Walsh at Walsh 's office . Walsh claimed the work
in dispute and referred Polishook to language in
the collective-bargaining agreement between the
Laborers and the Employer which gave the fol-
lowing work to employees represented by the Re-
spondent: "Unloading, handling and distributing of
281 NLRB No. 56
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all materials, fixtures, furnishings and appliances
from point of delivery to stockpiles and from
stockpiles to approximate point of installation."
Walsh said that he did not care that Casey's em-
ployees had always performed the work . Polishook
said that if the contract gave the work to the La-
borers-represented employees , "then I'm stuck with
it." Walsh said he would cease picketing if the em-
ployees were paid for the time they had missed,
and Polishook agreed. Polishook then assigned the
work to the Laborers and the strike ended . There-
after , Casey's employees left newly delivered appli-
ances on the sidewalk at the Employer 's jobsite.
B. Work in Dispute
The disputed work involves the unloading , trans-
porting, uncrating, and placement of appliances,
and the disposal of the debris at the Employer's
jobsite at the former Baker Chocolate Company
building in Dorchester Lower Mills, Massachusetts.
C. Contentions of the Parties
The Teamsters contends that reasonable cause
exists to believe that the Laborers has violated Sec-
tion 8(b)(4)(D) of the Act. It argues that the events
of 17 and 18 September described above constitut-
ed unlawful coercion. It contends that the work in
dispute should be awarded to employees represent-
ed by the Teamsters based on company preference
and past practice ; relative skills; economy and effi-
ciency of operations ; and the Laborers' acquies-
cence in the Teamsters' performance of the work
in dispute.
The Laborers contends that the work in dispute
should be assigned to employees represented by it
based on its collective -bargaining agreement with
the Employer; employer preference; an interunion
agreement; and efficiency and economy of oper-
ations.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
As set forth above, the record shows that, on 17
September, Laborers Business Agent Walsh told
the Employer that he would take the Laborers-rep-
resented employees off the job unless the work in
dispute was given to those employees . The Labor-
ers then picketed the jobsite on 17 and 18 Septem-
ber. We find that an object of the picketing was to
force the Employer to assign the disputed work to
employees represented by the Laborers. We further
note that, although the Laborers , the Teamsters,
and Casey have agreed to be bound by a jurisdic-
tional agreement between the Laborers and the
Teamsters, the Employer is not bound by this
agreement.
We, therefore , find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed -upon 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.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative 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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that either labor organiza-
tion has been certified by the Board as the collec-
tive-bargaining representative of the Employer's
employees in an appropriate unit. The Employer's
president, Benjamin Polishook, testified, however,
that he has signed the contract between the Massa-
chusetts Laborers' District Council of the Labor-
ers' International Union of North America, AFL-
CIO and two employer associations of which the
Employer is not a member, and that the Employer
abides by that contract. As indicated above, the
contract covers, inter alia, "Unloading, handling
and distributing of . . . appliances from point of
delivery to stockpiles and from stockpiles to ap-
proximate point of installation." We note, however,
the Teamsters ' contention that this language does
not clearly give the work to employees represented
by the Laborers. Specifically, the Teamsters con-
tends, and we agree, that the dishwashers involved
in the instant dispute were not stockpiled within
the meaning of this clause. Thus, when the Team-
sters-represented employees delivered the appli-
ances, the appliances were delivered directly to
their approximate point of installation and were not
delivered to stockpiles. The contract also states,
"[Ajll building Laborers' work necessary to tend
LABORERS LOCAL 223 (C.W.C. BUILDERS)
the Carpenters, Masons and other building trades
craftsmen , all cleanup of debris" belongs to the La-
borers. The Laborers contends that this provision
is relevant here because full installation of the dish-
washers was to be accomplished by other crafts-
men. We note, nevertheless, that the Laborers has
acquiesced for many years in the performance of
the work in dispute by Casey's employees repre-
sented by the Teamsters . Accordingly, reviewing
the totality of evidence on these points, we fmd
that the factors of certification and collective-bar-
gaining agreements favor neither union.2
2. Company preference and past practice
As noted above the work in dispute has been
performed by Casey 's Teamsters-represented em-
ployees for many years . Polishook testified that the
Employer is not financially responsible for damage
to the G .E. Hotpoint appliances while they are
being handled by Casey . He also testified that one
of the reasons "we gave it to Mr. Casey" was to
lessen the risk of damage to the appliances while
they were being delivered and uncrated . However
Polishook also testified that he believed the con-
tract with the Laborers required giving the work
to employees represented by the Laborers . Accord-
ingly, we find that the factor of employer prefer-
ence is inconclusive . We find , however, that past
practice favors an award of the work in dispute to
employees represented by the Teamsters.
3. Area and industry practice
The president and business agent of the Team-
sters, John Perry , testified that employees repre-
sented by the Teamsters place appliances at their
point of use for many construction industry em-
ployers in the Boston area. Accordingly, we find
that the factor of area practice favors an award of
the work in dispute to employees represented by
the Teamsters . There was no evidence regarding
industry practice . Accordingly, we find that the
factor of industry practice does not favor an award
of the work in dispute to either Union.
4. Relative skills
The employees represented by the Teamsters
performed the work in dispute for many years in a
safe and competent manner . Those employees used
tools and equipment not usually used by the Labor-
ers-represented employees. However , after the Em-
ployer had assigned the work to the Laborers-rep-
2 Longshoremen ILWU Local 50 (Brady-Hamilton Stevedore Ca), 244
NLRB 275 ( 1979), cited by the Laborers , is distinguishable from the in-
stant case on the grounds that the Board accepted, as the law of the case,
the court's finding that the respondent 's contract with the employers
there assigned the work to the respondent without qualification.
369
resented employees, they were able to perform the
work. Accordingly, we find that the factor of rela-
tive skills is inconclusive.
5. Economy and efficiency of operations
Polishook testified that he believed Casey's
Teamsters-represented employees were more effi-
cient in performing the disputed work and that he
had preferred to have Casey's employees perform
the work for many years for this reason. When the
Teamsters-represented employees delivered the ap-
pliances, they took the appliances from the deliv-
ery truck to the places where the appliances would
be used in one step . In contrast, when the Employ-
er's Laborers-represented employees transported
the appliances to the places where they would be
used, the process of placing the appliances required
two steps. Thus, the Teamsters-represented em-
ployees would leave the appliances on the sidewalk
or loading dock at the jobsite, where they would
remain until a Laborers-represented employee
became available to take them to their point of in-
stallation. Also, as noted above, the Employer is
not financially responsible for damages to the appli-
ances while they are being handled by Casey's em-
ployees . Accordingly, we find that the factors of
economy and efficiency of operations favor an
award of the work in dispute to employees repre-
sented by the Teamsters.
6. Interunion agreements
An official of the Laborers testified that there is
an agreement between the Laborers and the Team-
sters regarding the "tailgate delivery of any materi-
als that come on to a construction site ." In addi-
tion, the Laborers introduced a 1947 agreement be-
tween the International Brotherhood of Teamsters,
Chauffeurs, Warehousmen and Helpers of America
and the predecessor of the Laborers International
Union of North America, AFL-CIO, which states
that, at construction sites, Laborers-represented
employees have jurisdiction over " the loading, un-
loading and distribution of materials after the first
drop or point of delivery." The Laborers also in-
troduced letters dated 16 August 1982 and 1 De-
cember 1969 written by Laborers officials which
state that the Laborers and the Teamsters in the
New England area had agreed that Laborers-repre-
sented employees would unload all materials "from
tailboard to approximate point of installation" at
construction sites . There is no evidence that the
1947 agreement is not currently in effect . Accord-
ingly, we find that this factor favors an award of
the work in dispute to the Laborers-represented
employees.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Team-
sters are entitled to perform the work in dispute.
We reach this conclusion relying on area practice,
employer past practice, and economy and efficien-
cy of operations . In making this determination, we
are awarding the work to employees represented
by the Teamsters, not to that Union or its mem-
bers. The determination is limited to the controver-
sy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of P. J. Casey, Inc., represented by
Furniture and Piano Moving, Furniture Store
Drivers, Helpers, Warehousemen and Packers,
Local Union No. 82, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America are entitled to perform the
work of unloading, transporting, uncrating, and
placement of appliances, and the disposal of the
debris at the C.W.C. Builders, Inc. jobsite at Dor-
chester Lower Mills, Massachusetts.
2. Local 223, 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 C.W.C. Builders, Inc. to assign the disputed
work to employees represented by it.
3. Within 10 days from this date, Local 223, La-
borers' International Union of North America,
AFL-CIO, shall notify the Regional Director for
Region 1 in writing whether it will refrain from
forcing the Employer, by means proscribed by Sec-
tion 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.