Carpenters Local 1400 (Golden State Precast)

National Labor Relations Board - Board Decisions

Apr 24, 1984

269 N.L.R.B. 1141 (N.L.R.B. 1984)

CARPENTERS LOCAL 1400 (GOLDEN STATE PRECAST)
United Brotherhood of Carpenters & Joiners of
America, Local No. 1400, AFL-CIO and
Golden State Precast, Inc. and Ironworkers
Local Union 433. Case 31-CD-255
24 April 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
The charge in this Section 10(k) proceeding was
filed 12 July 1983 by the Employer, alleging that
the Respondent, United Brotherhood of Carpenters
and Joiners of America, Local No. 1400, AFL-
CIO (the Carpenters), violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging
in proscribed activity with an object of forcing the
Employer to assign certain work to employees it
represents rather than to employees represented by
Ironworkers Local Union 433 (the Ironworkers).
The hearing was held 14 September and 4 October
1983 before Hearing Officer Mori Rubin.
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
The Company, a California corporation, is en-
gaged in the installation of precast concrete at the
Los Angeles International Airport in Los Angeles,
California, where it annually purchases goods
valued in excess of $50,000 directly from enter-
prises located outside the State of California. The
parties stipulate, and we find, that the Employer is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and that the Carpen-
ters and the Ironworkers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Since May 19831 the Employer has been install-
ing precast panels on a steel-framed terminal at the
Los Angeles International Airport. The Employer
assigned Ironworkers-represented employees to rig,
align, and weld the precast panels.
Sometime later in May, Carpenters Business
Representative George Zurow approached Michael
I All dates were in 1983 unless specified otherwise.
269 NLRB No. 181
Sawyer, the Employer's secretary-treasurer, at the
jobsite and asked whether any employees repre-
sented by the Carpenters were employed on the
project. Sawyer replied that the Company was em-
ploying only ironworkers. According to Sawyer,
Zurow responded, "[O]h, no, you're not."
In early June2 representatives of the Carpenters,
the Employer, and the general contractor, Williams
& Burroughs, met to discuss the work assignments
for the project. According to Sawyer, Wayne
Pierce, a general representative of the Carpenters,
asserted that Carpenters-represented employees
should be included in the Employer's work crew
pursuant to a 1959 Memorandum of Understanding
signed by the Carpenters and the Ironworkers.s
Sawyer testified that when he replied that the Em-
ployer would continue to use ironworkers, Zurow
stated:
I'll do anything I have to do. I'll stop this job
cold. No one will be working here, period.
This job is going to shut down. We want car-
penters here. That's it.
On 7 July members of the Carpenters picketed at
the jobsite carrying signs directed against Williams
& Burroughs. Commencing 11 July members of the
Carpenters picketed with signs reading, "Golden
State Precast Inc. UNFAIR to CARPENTERS
NO AGREEMENT." The picketing continued for
approximately 2-1/2 weeks. 4
B. Work in Dispute
The disputed work involves the rigging, align-
ing, and welding of precast concrete panels on a
2 The record variously indicates the date as 2 June and 6 June.
3 The memorandum, dated 23 April 1959, states:
At a meeting held between Vice President, Juel Drake, of the Inter-
national Association of Bridge, Structual [sic] and Ornamental Iron
Workers and J. W. Howard, General Representative, of the United
Brotherhood of Carpenters and Joiners of America. the following
understanding was reached concerning the erection of pre-stressed
post-stressed and pre-cast concrete members, for the Southern Cali-
fornia area:
1. The rigging of pre-stressed, post-stressed and pre-cast concrete
members into approximate position shall be the work of the Iron
Workers, with a member of the United Brotherhood of Carpenters
at each end to supervise and assist in placing of concrete members.
2. The leveling, plumbing, bracing, adjusting and securing in final
position shall be the work of members of the United Brotherhood
of Carpenters.
This understanding shall become effective on April 23, 1959, and
shall remain in full force and effect until the two respective Interna-
tional Unions consumate [sic] an International Agreement covering
the erection of this material.
In order to promote a spirit of cooperation between the two
crafts, the Local Union Representatives of both organizations, as
well as the job stewards, shall make every effort to carry out the
intent and purposes of this understanding so that work shall be per-
formed in a friendly and cooperative spirit at all times.
' On I July 1983 the collective-bargaining agreements between area
contractors and Carpenter locals in southern California terminated, and
an industrywide strike began 5 July.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steel-framed terminal at Los Angeles International
Airport.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe the Carpenters violated Section
8(b)(4)(D) of the Act stemming from Zurow's al-
leged threat to shut down the jobsite if the Em-
ployer did not hire Carpenters-represented employ-
ees, as well as from the Carpenters' picketing. The
Employer also contends that it is not bound by any
voluntary method of resolving the dispute. The
Employer asserts that the Board should award the
disputed work to Ironworkers-represented employ-
ees based on its collective-bargaining agreement
with the Ironworkers, company preference and
practice, area and industry practice, relative skills,
and economy and efficiency of operation.
The Carpenters contends that there is no proba-
ble cause to believe that it violated Section
8(b)(4)(D) of the Act. The Carpenters denies that
its representatives made unlawful threats or state-
ments, and asserts that it picketed solely in support
of the industrywide construction strike begun 5
July 1983 following the 1 July expiration of the
collective-bargaining agreement between the Car-
penter locals and the Southern California General
Contractors. The Carpenters further contends that
it has a collective-bargaining agreement with the
Employer which, when read in conjunction with
the Employer's agreement with the Ironworkers,
provides an agreed-upon method of resolving the
dispute to which all parties are bound. According
to the Carpenters, these agreements require resolu-
tion of the dispute by the international unions. The
Carpenters further asserts that, if the Board deter-
mines the merits of the dispute, the work should be
awarded to composite crews of Carpenters-repre-
sented employees and Ironworkers-represented em-
ployees based on company and area practice and
the 1959 agreement between representatives of the
Carpenters and the Ironworkers internationals.
The Ironworkers asserted at the hearing that the
Carpenters' picketing constitutes reasonable cause
to believe it violated the Act, and that the work
should be awarded to employees represented by it
under its collective-bargaining agreement with the
Employer.
D. Applicability of the Statute
As stated above, Sawyer testified that, at the
June meeting to discuss project work assignments,
Zurow threatened to shut down the job unless Car-
penters-represented employees were included in the
crew. While Zurow denied making this statement,
a conflict in testimony does not prevent the Board
from proceeding under Section 10(k), for the
Board is not charged with finding that a violation
actually occurred, but only with determining that
reasonable cause exists for finding a violation. s Ac-
cordingly, although we do not rule on the credibil-
ity of the testimony at issue, we find that there is
reasonable cause to believe that Section 8(b)(4)(D)
has been violated. In this regard, in addition to the
alleged threat the Carpenters actually picketed at
the jobsite against Golden State. The Carpenters
contends that this picketing was unrelated to this
dispute, but was in support of an industrywide
strike in the area. The close proximity in time be-
tween the alleged threat and the picketing, howev-
er, reasonably could lead us to infer that an object
of the picketing was to have the work in dispute
awarded to composite crews including Carpenters-
represented employees.
There is no support for the Carpenters' conten-
tion that there is an agreed-upon method, binding
on all parties, for the voluntary resolution of this
dispute. In 1978 the Employer purchased its assets
from a company that was party to a 1971 prehire
agreement with the Carpenters. The Employer,
however, repudiated its predecessor's agreement in
April 1983, 6 and therefore is not bound by it.7 The
employer itself never signed any agreement with
the Carpenters.
The Employer is party to an agreement between
the Iron Worker Employers, State of California
and a Portion of Nevada, and the District Council
of Iron Workers of the State of California and Vi-
cinity, which provides that jurisdictional disputes
will be referred to the international unions in-
volved for determinations that are binding on the
signatory employers. The Carpenters, however, is
not party to this agreement and cannot benefit
from its terms.8 Thus, there is no agreement for
5 Longshoremen ILA Local 333 (Rukert Terminals), 268 NLRB 366, 367
(1983); Bricklayers Local 44 (Corbetta Construction), 253 NLRB 131, 133
(1980).
6 By letter to the Southern California District Council of Carpenters
dated 15 April 1983, the Employer's president stated:
I was recently notified that your labor organization contends that
Golden State Precast, Inc. is bound to a collective bargaining agree-
ment with your organization.
The collective bargaining agreement which was signed in June
1971 was signed on behalf of a different corporation by different
owners. This company has never signed any collective bargaining
agreement with your labor organization.
To avoid any misunderstanding, Golden State Precast, Inc.,
hereby repudiates and terminates any collective bargaining agree-
ment it may have with your labor organization effectively immedi-
ately.
Golden State Precast, Inc. does not employ any persons perform-
ing carpentry work and has no plans to employ such individuals in
the future.
7 NLRB v. Iron Workers Local 103, 434 U.S. 335, 341 (1978).
' See Iron Workers Local 361 (Concrete Casting), 209 NLRB 112, 115
(1974).
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CARPENTERS LOCAL 1400 (GOLDEN STATE PRECAST)
resolution of this dispute to which all parties are
bound.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dis-
pute is properly before the Board for determina-
tion.
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), 369 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
agreement
There is no evidence that either the Carpenters
or the Ironworkers has been certified by the Board
as the collective-bargaining representative for a
unit of the Employer's employees.
As stated above, the Employer has no labor
agreement with the Carpenters. The Employer's
agreement with the Ironworkers provides that
Ironworkers-represented employees shall perform
the work of "loading, unloading, hoisting, han-
dling, signaling, placing and erection of all pres-
tressed, poststressed, precast materials including the
securing by bolting and/or welding. .. ." This de-
scription clearly encompasses the work in dispute.
Accordingly, we find that this factor favors an as-
signment of the disputed work to Ironworkers-rep-
resented employees.
2. Company preference and past practice
Michael Sawyer, the Employer's secretary-treas-
urer, testified without contradiction that on prior
jobs the Employer generally assigned work similar
to the work in dispute to crews consisting entirely
of Ironworkers-represented employees. Although
on two recent occasions the Employer used com-
posite crews at the request of general contractors,
these assignments were unusual. The Employer as-
signed the work in dispute to employees represent-
ed by the Ironworkers, and is satisfied by and pre-
fers this assignment. Accordingly, we find that the
factor of company preference and past practice
favors an award to Ironworkers-represented em-
ployees.
3. Area and industry practice
The 1959 Memorandum of Understanding be-
tween the representatives of the Ironworkers and
the Carpenters internationals provides that the
work of rigging and securing precast concrete will
be performed by composite crews. The Employer
contends, however, that the Ironworkers have fre-
quently ignored this agreement lately, and area em-
ployers have not relied on it. As the record does
not definitively indicate whether or not employers
generally award this work in accordance with the
interunion agreement, we find that this factor does
not favor an award to employees represented by
either union.
4. Relative skills
As part of the Ironworkers' apprentice program,
its members take a course in welding, and approxi-
mately half of its members are certified welders.
Employees represented by the Ironworkers have
performed this work on previous jobs. Employees
represented by the Carpenters, however, have also
performed the work in dispute as part of composite
crews. Accordingly, we find that this factor does
not favor an award to employees represented by
either Union.
5. Economy and efficiency of operation
The Employer's field superintendent, Bob Shuff,
testified that, in contrast with Carpenters-represent-
ed employees, Ironworkers-represented employees
can interchangeably perform all of the work in-
volved in the rigging and aligning processes, thus
increasing the efficiency of the operation. We find,
therefore, that this factor .favors an award to Iron-
workers-represented employees.
6. Interunion agreement
As noted above, the 1959 Memorandum of Un-
derstanding requires a composite crew for the
work in dispute. Accordingly, we find that this
factor favors an award to a composite crew of
Ironworkers-represented employees and Carpen-
ters-represented employees.
Conclusion
After considering all the relevant factors, we
conclude that Ironworkers-represented employees
are entitled to perform the work in dispute. We
reach this conclusion relying on the collective-bar-
gaining agreement between the Employer and the
Ironworkers, the Company's preference and past
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice, and economy and efficiency of operation.
In our view, these factors outweigh the interunion
agreement, which favors awarding the disputed
work to a composite crew. In making this determi-
nation, we are awarding the work to Ironworkers-
represented employees, not to that Union or its
members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Golden State Precast, Inc., rep-
resented by Ironworkers Local Union 433, are enti-
tled to perform the work of rigging, aligning, and
welding of precast concrete panels on a steel-
framed terminal at Los Angeles International Air-
port.
2. United Brotherhood of Carpenters & Joiners
of America, Local No. 1400, AFL-CIO, is not en-
titled by means proscribed by Section 8(b)(4XD) of
the Act to force Golden State Precast, Inc., to
assign the disputed work to employees represented
by it.
3. Within 10 days from this date, United Brother-
hood of Carpenters & Joiners of America, Local
No. 1400, AFL-CIO, shall notify the Regional Di-
rector for Region 31 in writing whether it will re-
frain from forcing the Employer, by means pro-
scribed by Section 8(bX4)(D), to assign the disput-
ed work in a manner inconsistent with this determi-
nation.
1144