Carpenters Kentucky District Council (Wehr Constructors)

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1129 (N.L.R.B. 1992)

1129
308 NLRB No. 163
CARPENTERS KENTUCKY DISTRICT COUNCIL (WEHR CONSTRUCTORS)
1 The Laborers’ name appears as amended at the hearing.
Kentucky State District Council of Carpenters
(Wehr Constructors, Inc.) and Andrew J. Rus-
sell, Attorney at Law. Case 9–CD–464
September 30, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on May 13, 1992, by Andrew J. Russell, attorney
at law, who represents the Employer, Wehr Construc-
tors, Inc. (Wehr). The charge alleged that the Respond-
ent, Kentucky State District Council of Carpenters
(Carpenters), violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing Wehr to assign cer-
tain work to employees represented by the Carpenters
rather than to employees represented by Kentucky La-
borers District Council (Laborers).1 The hearing was
held on June 2 and 3, 1992, before Hearing Officer
Damon W. Harrison Jr. The Employer and the Car-
penters have filed posthearing briefs.
The National Relations Board has delegated its au-
thority 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
The Employer is engaged in the commercial con-
struction industry as a general contractor and construc-
tion manager. During the 12 months preceding the
hearing, the Employer had gross revenues in excess of
$500,000, and it purchased and received goods and
materials which were valued in excess of $50,000 and
were shipped directly to it from points outside the
Commonwealth of Kentucky. We find that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Carpenters
and the Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Wehr has been building a new sanctuary and park-
ing garage for St. Margaret Mary’s Church in Louis-
ville, Kentucky. Wehr rented reusable aluminum forms
for casting the concrete beams in the sanctuary. The
casting process involves the construction of forms, the
pouring of concrete, and, once the concrete has set, the
dismantling or ‘‘wrecking’’ of the forms.
Wehr’s project superintendent was Richard Pennick.
He had the independent authority to hire and fire, to
assign work to, and to adjust the grievances of all of
Wehr’s jobsite employees, including carpenters and la-
borers. Pennick assigned the building of the forms to
employees represented by the Carpenters, the pouring
of the concrete to employees represented by the Labor-
ers, the wrecking of forms to be reused on the jobsite
to employees represented by the Carpenters, and the
‘‘final’’ wrecking of forms which were not to be re-
used on the jobsite to employees represented by the
Laborers.
In January 1992, Ron Herp, business service rep-
resentative for Carpenters Local 64, visited the jobsite.
Herp told Pennick that employees represented by the
Laborers should be wrecking the forms only if the ma-
terial was to be discarded; otherwise, employees rep-
resented by the Carpenters should wreck the forms. In
response, Pennick commented that since Wehr had
rented aluminum forms, no forms would be discarded.
In Herp’s view, this meant that employees represented
by the Carpenters should perform all the wrecking.
On February 24, 1992, Herp filed a grievance
against Wehr for not assigning the final wrecking to
employees represented by the Carpenters. Wehr’s attor-
ney advised the Carpenters that Wehr had no obliga-
tion to submit the matter to arbitration because there
was no collective-bargaining agreement in effect.
Superintendent Pennick was a member of the Car-
penters. On April 22, 1992, a letter from Carpenters’
secretary-treasurer/business manager Steve Barger ad-
vised Pennick that charges had been filed against him
and that the District Council had scheduled a trial for
May 16, 1992. Attached copies of the charges and an
internal union memorandum show that charges resulted
from Pennick’s assignment of final wrecking work to
Laborers at the church jobsite.
Pennick refused to appear for the scheduled trial. He
subsequently received another letter from Barger di-
recting Pennick to appear for a reading of the verdict
in his trial. The record does not indicate what that ver-
dict was.
B. Work in Dispute
The work in dispute involves the final wrecking of
aluminum gang forms which are not to be reused at
the site of the Employer’s St. Margaret Mary’s Church
project located at 7813 Shelbyville Road, Louisville,
Kentucky.
C. Contentions of the Parties
Wehr contends that there is reasonable cause to be-
lieve that the Carpenters violated Section 8(b)(4)(D) of
the Act and that the Board must therefore determine
the merits of the dispute. Wehr further contends the
work in dispute should be assigned to employees rep-
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 ‘‘Coercion’’ within the meaning of Sec. 8(b)(4)(ii) broadly in-
cludes ‘‘nonjudicial acts of a compelling or restraining nature, ap-
plied by way of concerted self-help consisting of a strike, picketing,
or other economic retaliation and pressure in the background of a
labor dispute.’’ Sheet Metal Workers Local 48 v. Hardy Corp., 332
F.2d 682, 686 (5th Cir. 1964), cited with approval in United Scenic
Artists Local 829 (Theatre Techniques), 267 NLRB 858, 863 (1983).
resented by the Laborers on the basis of its own and
area past practices and the economy and efficiency of
operations.
The Laborers contends that employees which it rep-
resents should be awarded the work in dispute on the
basis of industry past practice and its interpretation of
a 1949 agreement between the Internationals of Labor-
ers and Carpenters. The Carpenters contends that em-
ployees that it represents should be awarded the work
in dispute on the basis of its interpretation of the 1949
agreement, industry past practice, and relative skills
and safety.
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 upon a method for the vol-
untary adjustment of the dispute.
It is undisputed that the Carpenters seeks the reas-
signment of the work in dispute from employees rep-
resented by the Laborers to employees represented by
the Carpenters. It is also undisputed that the Carpenters
brought internal disciplinary charges against Pennick in
furtherance of its reassignment objective. The Board
has held that the bringing of disciplinary charges
against a person engaged in commerce who is a union
member constitutes coercion within the meaning of
Section 8(b)(4)(ii) of the Act. Sheet Metal Workers
Local 104 (Losli International), 297 NLRB 1078,
1087–1088 (1990) (union charges against company
president); Laundry & Dry Cleaners Local 209 (East
Bay Counties Dry Cleaners Assn.), 167 NLRB 45, 51–
52 (1967) (union charges against independent contrac-
tor).2 We therefore find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred.
Furthermore, there is no evidence that all parties have
an agreed method for voluntary adjustment of the dis-
pute. 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
On August 4, 1989, the Board certified the Car-
penters as the exclusive representative of a unit of all
journeymen and apprentice carpenters working for the
Employer at jobsites in Kentucky. The bargaining unit
description in the certification makes no reference to
the work in dispute. There are no certifications appli-
cable to the Employer’s employees who are rep-
resented by the Laborers.
Wehr and the Laborers are parties to a current col-
lective-bargaining agreement, which is effective from
July 1, 1988, through June 30, 1993. Article V of this
contract states that it is meant ‘‘to embrace building
construction, including . . . wrecking.’’ Wehr and the
Carpenters were parties to a collective-bargaining
agreement which expired on May 31, 1989, prior to
the representation election proceeding which resulted
in the aforementioned certification of the Carpenters.
Article 1.4(a) of the expired contract stated that its
terms were applicable ‘‘generally but not strictly lim-
ited to building construction, parking lot construction,
and all alterations, remodeling, maintenance repairs,
and wrecking work performed by the Employer.’’
Based on the foregoing, we find that the factor of
Board certifications and collective-bargaining agree-
ments does not favor the jurisdictional claim of em-
ployees represented by one union over those rep-
resented by the other union.
2. Agreements between the Unions
In 1949, the International Unions of the Carpenters
and the Laborers executed a jurisdictional memoran-
dum of agreement on concrete forms. In relevant part,
the memorandum stated:
1. On stripping of panel forms to be re-used
again, the releasing shall be done by members of
the United Brotherhood of Carpenters and Joiners
of America.
2. The moving, cleaning, oiling and carrying to
the next point of erection, and the stripping of
forms which are not to be reused . . . shall be
done by members of the [Laborers].
As previously stated, the Carpenters claims that the
memorandum of agreement entitles employees rep-
resented by it to perform all wrecking work on forms
which are to be reused either on the same jobsite or
elsewhere. Wehr and the Laborers claim that the
memorandum of agreement entitles employees rep-
1131CARPENTERS KENTUCKY DISTRICT COUNCIL (WEHR CONSTRUCTORS)
resented by the Laborers to perform final wrecking
work on forms which are not to be used again at the
same jobsite. We find that the language of the memo-
randum arguably supports either of the opposing
views. Furthermore, we note evidence that the parties
did not contemplate the allocation of wrecking work
for reusable aluminum forms, which were not yet in
general use, when they executed the 1949 memoran-
dum. Accordingly, we find that this factor does not
favor an assignment of the disputed work to the em-
ployees represented by either Union.
3. Company preference and past practice
It is clear that the Employer prefers to assign the
work in dispute to employees represented by the La-
borers. Superintendent Pennick testified that he as-
signed the work in dispute in accord with his general
experience in the construction industry, including 8
years working for Wehr. Carpenters Business Rep-
resentative Herp and Director of Organizing Lawrence
Hujo both testified that they had witnessed employees
represented by the Carpenters wrecking reusable alu-
minum forms for the Employer on past projects, but
neither witness identified the work being performed as
the specific final wrecking work which is the subject
of the current jurisdictional dispute. Therefore, we find
the factor of company preference and past practice fa-
vors an award to the employees represented by the La-
borers.
4. Area and industry practice
Pennick and Laborers Business Manager Paul
Barrick Jr., similarly testified that the area practice
during their many years of construction industry expe-
rience had been for employees represented by the La-
borers to perform all final wrecking of forms that were
not to be reused on the same jobsite. Barrick also testi-
fied that composite crews of Laborers and Carpenters
had occasionally been used to perform final wrecking
in order to avoid jurisdictional disputes. Carpenters of-
ficials Herp and Hujo testified that employees rep-
resented by the Carpenters had always wrecked any
forms that were to be reused at any location.
In light of the conflicting partisan testimony, this
factor does not support an award of the work in dis-
pute to either group of employees.
5. Relative skills and safety
Although witnesses for the Carpenters stated their
belief that the Carpenters’ formal apprenticeship pro-
gram assured greater skill and safety in carpenters’
work, there is no objective evidence that employees
represented by Laborers cannot effectively and safely
perform the work in dispute. Under these cir-
cumstances, this factor does not support an award of
the work to either group of employees.
6. Economy and efficiency of operations
Job Superintendent Pennick testified that there is no
need to retain employees represented by the Carpenters
to construct or remodel a form for further jobsite use
after the final pour for a particular form has been com-
pleted. He further indicated that it is more economical
and efficient to retain only employees represented by
the Laborers to perform both the final wrecking and
the subsequent cartage of materials for a form which
is not to be reused at the jobsite. We find that this fac-
tor of economy and efficiency of operations favors an
award of the disputed work to the employees rep-
resented by the Laborers.
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 and the economy and effi-
ciency of operations. In making this determination, we
are awarding the work to employees represented by the
Laborers, not to that Union or its members. The deter-
mination is limited to the controversy that gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Wehr Constructors, Inc., rep-
resented by the Kentucky Laborers District Council are
entitled to perform final wrecking of aluminum gang
forms which are not to be reused at the site of the Em-
ployer’s St. Margaret Mary’s Church project located at
7813 Shelbyville Road, Louisville, Kentucky.
2. The Kentucky State District Council of Car-
penters is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Wehr Constructors, Inc.
to assign the disputed work to employees represented
by it.
3. Within 10 days from this date, the Kentucky State
District Council of Carpenters shall notify the Regional
Director for Region 9 in writing whether it will refrain
from forcing the Employer, by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.