Carpenters Local 62 (Homebase, Inc.)

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 984 (N.L.R.B. 1993)

984
311 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Local 62, AFL–CIO and Homebase,
Inc., a Subsidiary of Waban, Inc. and Chicago
Northeast Illinois District Council, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO, Party in Interest. Case 13–
CD–469
May 28, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed July 30, 1992, by the Employer, Homebase, Inc.,
a Subsidiary of Waban, Inc., alleging that the Re-
spondent, United Brotherhood of Carpenters and Join-
ers of America, Local 62, AFL–CIO, violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it
represents rather than to the Employer’s unrepresented
employees. The hearing was held on August 18, 1992,
before Hearing Officer Margaret B. Peck. The Em-
ployer and Local 62 filed posthearing briefs.
The National Labor Relations Board has delegated
its authority 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, Homebase, a Delaware corporation,
is a subsidiary of Waban, Inc., and a retail distributor
of home improvement products with stores in 15
States, including 6 stores in the Chicago area. In the
course and conduct of its business operations, the Em-
ployer annually purchases and receives materials val-
ued in excess of $50,000 directly from suppliers lo-
cated outside the State of Illinois. The parties stipu-
lated, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that Carpenters Local 62 and the Chi-
cago Northeast Illinois District Council, United Broth-
erhood of Carpenters and Joiners of America, AFL–
CIO, Party in Interest, are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a retail distributor of home im-
provement products with stores in 15 States, including
6 stores in the Chicago area.
In July 1992, construction work on the Bedford Park
Homebase store had been 90–95 percent completed. At
the time, steel shelving was being installed in the store
by a subcontractor, Henricy Construction Co., and the
Employer’s employees were laying precut wooden
‘‘stickers,’’ 2- by 6-inch wooden planks, between the
horizontal beams to form the shelf where either pallets
of merchandise or steel baskets of merchandise are set.
Henricy is a signatory employer to the Union’s 10-
county master agreement. It employs carpenters, labor-
ers, and operating engineers who are covered by union
contracts.
On July 27, 1992, Union Steward Richard
Laczkowski told Henricy that the work being done in
the store by Homebase employees was carpenter’s
work and that he was going to call the union business
agent. On July 28, 1992, Ed Lyons, the Union’s busi-
ness agent, asked three of the Employer’s employees
if they had a ‘‘carpenters’ card.’’ He did not ask their
pay scale. That same day, the Union sent a
‘‘mailgram’’ to the Employer’s director of warehouse
planning, John Lewis, in Fullerton, California, stating
that Lewis had 3 days to prove that the Employer paid
‘‘area standards’’ for work being done by the Employ-
er’s employees. The Union also disclaimed any interest
in obtaining that work or representing the Employer’s
employees. On July 29, 1992, Union Steward
Laczkowski told Henricy that there would be a picket
the next day.
On July 30, 1992, the Union picketed the Employ-
er’s Bedford Park store. Four picketers wore vests that
read, ‘‘AFL–CIO Carpenters informational picket to
protest substandard wages against Homebase for car-
pentry work being done in the building.’’ The pick-
eting shut down the job for the day at Homebase and
at least one other store under construction at the build-
ing complex.
B. Work in Dispute
The notice of hearing identified the work in dispute
as ‘‘the initial installation of wood stickers at the
Homebase, Inc. store at 7200 South Cicero Avenue,
Bedford Park, Illinois.’’ During the hearing, the Em-
ployer moved to expand the scope of the hearing to in-
clude future locations within the jurisdiction of the
Union in the Chicago metropolitan area. The motion
was deferred to the Board. The Employer further
moved to expand the scope of the work to include the
‘‘initial installation of wood stickers, baskets, vendor
displays and peg hooks.’’ This motion was also de-
ferred to the Board. We deny both motions, for the
reasons set forth below.
C. Contentions of the Parties
The Union contends that the scope of the hearing
was wrongfully expanded to include testimony regard-
985CARPENTERS LOCAL 62 (HOMEBASE, INC.)
ing activity at jobsites outside of Bedford Park. The
Union argues that it was denied the opportunity to ade-
quately prepare for this testimony. Finally, the Union
contends that it had officially disclaimed any interest
in the work at the Bedford Park location.
The Employer contends that the Union did make a
demand for the work in question, threatened to picket
or cause trouble in the event that such work was not
awarded to its members, and did, in fact, picket at the
Bedford Park store. The Employer further contends
that there is sufficient evidence in the record to show
that the work in question is retail store work that
should be awarded to its unrepresented employees, and
that the award should extend to all locations in the
Northern Illinois 10-county area of suburban Chicago
within the geographic jurisdiction of the Chicago
Northeast Illinois District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL–CIO.
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 find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that the parties
have not agreed to a method for voluntary adjustment
of the dispute.
As noted, on July 27, 1992, Union Steward
Laczkowski told Henricy that the work being done in
the store was carpenters’ work and that he was going
to call Union Business Agent Lyons. Lyons thereafter
asked three of the Employer’s employees if they had
a carpenters’ card. Lyons did not ask their pay scale.
That same day the Union sent a mailgram to John
Lewis, the Employer’s director of warehouse planning,
stating that he had 3 days to prove that the Employer
paid area standards wages. The mailgram disclaimed
any interest in obtaining the work or representing the
Employer’s employees. Subsequently, on July 29,
1992, Laczkowski told Henricy that there would be a
picket the next day. On the next day, July 30, 1992,
the Respondent picketed the Employer’s Bedford Park
store.
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred. We find that although
the Respondent’s July 28 mailgram stated that the Re-
spondent was not claiming the work but was only en-
suring that the Employer complied with area standards,
this disclaimer was not effective because the Respond-
ent subsequently engaged in conduct inconsistent with
its disclaimer. Specifically, the Respondent disregarded
the 3 days it purported to allow for a reply, and pick-
eted the Bedford Park jobsite on July 30. Although the
picket signs stated that the carpenters’ were engaging
in ‘‘informational picketing to protest substandard
wages against Homebase,’’ we note that there was no
testimony that the Respondent knew the wage rate
Homebase was paying and it did not await the Em-
ployer’s reply to the mailgram before picketing. Thus,
we find that there is reasonable cause to believe that
one object of the picketing was to obtain the disputed
work for employees represented by the Respondent.
Carpenters Local 98-T (Permacrete Products), 307
NLRB 401 (1992).
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred. We also find that
the dispute is not moot merely because the work in
dispute has been completed. The parties stipulated, and
there is no evidence of an agreed-upon or approved
method for the voluntary adjustment of the dispute to
which all parties are bound within the meaning of Sec-
tion 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 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 140 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining
agreements
No union has been certified by the Board as the col-
lective-bargaining representative of the Employer’s
employees involved here, and the Employer is not a
party to any collective-bargaining agreement covering
those employees. Accordingly, these factors are not
helpful in determining the dispute.
2. Company preference and past practice
The Employer has assigned work of the type in dis-
pute to its employees at 85 stores nationwide. The Em-
ployer prefers this assignment because it is a training
tool for new employees who gain the necessary famili-
arity with the operation through the initial setup of the
store. This factor favors the assignment to the Employ-
er’s employees.
3. Relative skills
There are no special skills involved in the disputed
work. This factor favors neither party.
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Efficiency and economy of operation
As noted, there is testimony that it is more efficient
for the Employer to use its own employees because the
Employer’s employees have done the work before in
setting up other new stores. This factor favors an as-
signment to the employees of the Employer.
Conclusions
After considering all the relevant factors, we con-
clude that the Employer’s unrepresented employees are
entitled to perform the work in dispute. We reach this
conclusion relying on the Employer’s past practice and
preference, and the economy and efficiency of oper-
ations.
Scope of the Award
The Employer requests that the Board issue a broad
award covering all locations in the Northern Illinois
10-county area of suburban Chicago. The Employer ar-
gues that there is an ongoing dispute at different loca-
tions for different setup jobs and that there is a likeli-
hood of a repetition of illegal activity. Therefore, the
Employer requests that the award cover all of Northern
Illinois.
The notice of hearing identifies the work in dispute
as the ‘‘assignment of the initial installation of wood
stickers at the Homebase, Inc. store at 7200 South Cic-
ero Avenue, Bedford Park, Illinois.’’ At the hearing,
the scope of the hearing was expanded to include al-
leged events which occurred outside the Bedford Park
store location. For the reasons stated below, we find
that the broad award requested by the Employer is in-
appropriate in the circumstances of this case.
Although the scope of the hearing was expanded to
include testimony regarding jobsites other than the
Bedford Park store, the Union’s request for a continu-
ance to prepare its evidence with respect to other
jobsites was denied. We find that the hearing officer’s
denial of the Union’s request deprived it of the oppor-
tunity to adequately prepare a rebuttal to the testimony
which went beyond the scope of the notice of hearing.
We deny the motion to expand the nature of the work
in dispute for the same reason. Moreover, we note that
the Board has not previously determined jurisdictional
disputes involving this Employer and this Union. There
is thus insufficient evidence indicating a proclivity on
the part of the Union to engage in conduct prohibited
by Section 8(b)(4)(D). Accordingly, we conclude that
the issuance of a broad award is inappropriate in this
proceeding. The determination is limited to the con-
troversy that gave rise to this proceeding. See Elec-
trical Workers IBEW Local 103 (Comm-Tract), 289
NLRB 281 (1988).
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Unrepresented employees of Homebase, Inc., a
Subsidiary of Waban, Inc. are entitled to perform the
initial installation of wood stickers at its Bedford Park,
Illinois store.
2. United Brotherhood of Carpenters and Joiners of
America, Local 62, AFL–CIO is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
Homebase, Inc., a Subsidiary of Waban, 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, Local 62,
AFL–CIO, shall notify the Regional Director for Re-
gion 13 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 in-
consistent with this determination.