Carpenters Local 112 (Keeney Construction)

National Labor Relations Board - Board Decisions

Feb 13, 1989

292 N.L.R.B. 1041 (N.L.R.B. 1989)

CARPENTERS LOCAL 112 (KEENEY CONSTRUCTION)
United Brotherhood of Carpenters and Joiners of
America, Union Local No 112, AFL-CIO and
Keeney Construction Co, Inc and Laborers'
International Union of North America, District
Council of Laborers State of Montana, Local
No 1334, AFL-CIO Case 19-CD-455
February 13, 1989
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed August 12, 1988 , by Keeney Construction
Co, Inc (Keeney) alleging that the Respondent,
United Brotherhood of Carpenters and Joiners of
America, Union Local No 112, AFL-CIO (Car-
penters Local 112) violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in
proscribed activity with an object of forcing
Keeney to assign certain work to employees it rep-
resents rather than to employees represented by
Laborers ' International Union of North America,
District Council of Laborers State of Montana,
Local 1334, AFL-CIO (Laborers Local 1334) The
hearing was held September 7, 1988
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,
finding them free from prejudicial error On the
entire record , the Board makes the following find-
ings
I JURISDICTION
Keeney, a Montana corporation, is engaged in a
commercial concrete contracting business at its fa-
cility in Missoula, Montana, where it annually de-
rives revenues in excess of $500,000 and purchases
goods valued in excess of $50,000 from suppliers
located outside the State of Montana During the
same period Keeney provided services in excess of
$50,000 to customers within the State of Montana
who themselves are engaged in interstate coin
merce The evidence indicates, and we find, that
Keeney is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act We find that
Carpenters Local 112 and Laborers Local 1334 are
labor organizations within the meaning of Section
2(5) of the Act i
' Carpenters Local 112 (Summit Valley) 202 NLRB 974 (1973) Labor
ers Local 1334 (Western Sign) 281 NLRB 185 (1986)
II THE DISPUTE
1041
A Background and Facts of Dispute
Keeney is a subcontractor on the Port of Mon-
tana Authority Hub Facility project at Silverbow,
Montana Keeney's work consists of the installation
of two mass reinforced concrete slabs at the
project Since at least 1983, Keeney has assigned
the work of constructing the wooden forms for the
concrete slabs to a composite crew of employees
represented by Laborers Local 1334 and cement
masons Keeney has a collective bargaining agree-
ment with Laborers Local 1344 It has no collec-
tive-bargaining agreement with Carpenters Local
112
On August 3, 1988,2 Keeney General Manager
Ronald Keeney was approached at the jobsite by
Carpenters Local 112 Business Agent Paddy Den-
nehy Dennehy told Keeney that the construction
of the wooden forms for the concrete slabs was
carpenters' work Keeney told Dennehy that for
years Keeney had been performing this type of
work all over the State with laborers and cement
masons and that he did not see any reason to
change that practice Dennehy replied, "Well, it's
going to be carpenters on this job " That afternoon
pickets from Carpenters Local 112 appeared at the
job carrying signs indicating that Keeney has no
contract with Carpenters Local 112 and is a
"SCAB contractor " On August 5 Keeney and
Dennehy attended a meeting at the Laborers' hall
with Laborers Local 1334 Business Agent Larry
Persenger Once again Dennehy asserted that the
building of the forms should be assigned to em
ployees represented by Carpenters Local 112, and
asked Keeney to sign a Local 112 contract Keeney
declined to sign a contract or change the assign-
ment of the disputed work Pickets appeared at the
jobsite off and on for the rest of August As of the
hearing date, Keeney had not changed the assign-
ment of the disputed work
B Work in Dispute
The disputed work involves the building of
wooden forms for pouring concrete slabs at the
Port of Montana Authority Hub Facility project
located at Silverbow, Montana
C Contentions of the Parties
Keeney contends that Carpenters Local 112 vio-
lated Section 8(b)(4)(D) of the Act by its August 3,
1988 demand for the disputed work and subsequent
picketing Keeney further contends that it has a
contract with Laborers Local 1334 and has as-
2 All dates are in 1988
292 NLRB No 117
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed the disputed work in accordance with that
contract Keeney argues that the disputed work
should be awarded to employees represented by
Laborers Local 1334 on the basis of Keeney's pref-
erence and past practice, economy and efficiency,
and relative skills and safety Neither Carpenters
Local 112 nor Laborers Local 1334 appeared at the
hearing or filed briefs
D Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b)(4)(D)
charge has arisen However, before the Board pro-
ceeds with a determination of dispute, it must be
satisfied that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated, and that
there is no agreed-on method for voluntary adjust
ment of the dispute
At the hearing Keeney General Manager Ronald
Keeney testified that Carpenters Local 112 de-
manded that the disputed work be reassigned and
picketed Keeney's worksite in an attempt to force
Keeney to assign the disputed work to employees
it represents rather than to employees represented
by Laborers Local 1334 Keeney's testimony is un
disputed
We, therefore, find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
Further, there exists no agreed method of volun
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act Accordingly, we find
tha' 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 judgement 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 Certifications and collective-bargaining
agreements
No party claims that there are certifications ap-
plicable to the work in dispute
Keeney does not have a collective-bargaining
agreement with Carpenters Local 112 Keeney
does have a collective-bargaining agreement with
Laborers Local 1334, it contains the classification
of form setter and form stripper This factor of col
lective-bargaining agreements favors finding that
employees represented by Laborers Local 1334 are
entitled to perform the disputed work
2 Company preference and past practice
Ronald Keeney testified that since at least 1983
Keeney has assigned the disputed work to a com-
posite crew consisting of employees represented by
Laborers Local 1334 and cement masons Accord-
ingly, this factor favors an award of the disputed
work to employees represented by Laborers Local
1334 and cement masons
3 Area practice
Ronald Keeney testified without contradiction
that other companies in the area perform similar
work with laborers and cement masons Accord-
ingly, this factor favors an award of the disputed
work to employees represented by Laborers Local
1334 and cement masons
4 Relative skills and safety
Ronald Keeney testified without contradiction
that there are no special safety considerations in
volved in the performance of the disputed work,
that he is satisfied with the skills demonstrated by
employees represented by Laborers Local 1334 and
cement masons, and that he is not familiar with the
skill of employees represented by Carpenters Local
112 No testimony was presented at the hearing
concerning the skills of employees represented by
Carpenters Local 112 Accordingly, while the
safety factor is not helpful to a determination, the
factor of relative skills favors an award of the dis-
puted work to a composite crew of laborers and
cement masons
5 Economy and efficiency of operation
Uncontradicted evidence reveals that if the dis-
puted work were assigned to employees represent-
ed by Carpenters Local 112, the composite crew of
employees represented by Laborers Local 1334 and
cement masons , which performs all the other work
on the job, would remain idle while the disputed
work is being completed Accordingly, this factor
favors an award of the disputed work to employees
represented by Laborers Local 1334 and cement
masons
Conclusions
After considering all the relevant factors, we
conclude that a composite crew consisting of em-
ployees represented by Laborers Local 1334 and
cement masons are entitled to perform the disputed
CARPENTERS LOCAL 112 (KEENEY CONSTRUCTION)
work We reach this conclusion relying on the fac-
tors of collective-bargaming agreements , employer
preference and past practice , area practice , econo-
my and efficiency of operation, and relative skills
In making this determination , we are awarding the
work to employees represented by Laborers Local
1334 and cement masons, and not to that Union or
its members The determination is limited to the
controversy that gave rise to this proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 A composite crew of employees of Keeney
Construction Co, Inc, consisting of employees
represented by Laborers' International Union of
North America, District Council of Laborers State
of Montana , Local No 1334, AFL-CIO, and
1043
cement masons, are entitled to perform the building
of wooden forms for pouring concrete slabs at the
Port of Montana Authority Hub Facility project at
Silverbow, Montana
2 United Brotherhood of Carpenters and Joiners
of America, Union Local No 112, AFL-CIO is
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Keeney Construction
Co, Inc to assign the disputed work to employees
represented by it
3 Within 10 days from this date, United Brother-
hood of Carpenters and Joiners of America, Union
Local No 112, AFL-CIO shall notify the Regional
Director for Region 19 in writing whether it will
refrain from forcing the Employer, by means pro-
scribed by Section 8(b)(4)(D), to assign the disput-
ed work in a manner inconsistent with this determi-
nation