Carpenters Local 790 (C. Iber & Sons)

National Labor Relations Board - Board Decisions

Sep 22, 1993

312 N.L.R.B. 299 (N.L.R.B. 1993)

299
312 NLRB No. 52
CARPENTERS LOCAL 790 (C. IBER & SONS)
1 Except where otherwise specified, all dates are in 1993.
2 Although the Carpenters agrees that Sleister’s notes establish that
an assignment of the work was made at this meeting, the Laborers
asserts that the notes reflect what was discussed but do not constitute
an assignment of work.
Northwest Illinois and Eastern Iowa District Coun-
cil of Carpenters and Carpenters Local No. 790
and C. Iber & Sons, Inc. and Local Union No.
109, Laborers’ International Union of North
America. Case 33–CD–359
September 22, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on March 1, 1993,1 by the Employer, C. Iber &
Sons, Inc., alleging that the Respondent, Carpenters
Local 790, had violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing the Employer to as-
sign certain work to employees it represents rather than
to employees represented by Laborers Local 109. The
hearing was held on April 1, 2, and 26 before Hearing
Officer Debra L. Stefanik.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the entire record, the Board makes the
following findings.
I. JURISDICTION
The Employer, a Delaware corporation, is a general
contractor engaged in commercial and industrial con-
struction with an office and principal place of business
in East Peoria, Illinois. The parties stipulated that in
the 12 months preceding the hearing, a representative
period, the Employer received gross revenues in excess
of $50,000 for performance of services directly to cus-
tomers outside the State of Illinois and purchased and
received services or materials in excess of $50,000 di-
rectly from outside the State of Illinois. The parties
further 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 Carpenters Local 790
and Laborers Local 109 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 the general contractor in charge of
the construction of an addition to the Faraday Hall
building at Northern Illinois University in DeKalb, Illi-
nois. One facet of the construction involves the erec-
tion of shoring to make forms into which concrete is
poured. The shoring erection work in issue includes as-
sembling tubular metal sills, shoes, horsing, and sad-
dles, but does not include beams, joists, and plywood
decking. The Employer has collective-bargaining
agreements with both Carpenters and Laborers that ap-
pear to cover such shoring erection, which were exe-
cuted in July or August 1992, prior to the commence-
ment of the Faraday Hall project.
On December 29, 1992, the Employer held a 2- to
3-hour meeting attended by representatives of the Car-
penters, the Laborers, and the Northern Illinois Con-
tractors Association. Mike Sleister, the Employer’s
vice president, and Michael Childers, the field super-
intendent at the project since December 21, 1992, were
present. Also present was Glenn Turpoff, the executive
director of the contractors association. Sleister testified
that the meeting was conducted ‘‘to resolve the rum-
blings about this shoring system,’’ i.e., which Union’s
members should perform the work. Prior to this meet-
ing the shoring work had been assigned to employees
represented by the Carpenters. Sleister stated that prior
to that meeting, despite the grumbling, neither Union
had threatened to picket or strike or take other action
related to performance of the shoring erection work. In
the course of the meeting, each of the Unions claimed
to have previously performed such work in the DeKalb
area and claimed the work for employees it represents.
Sleister testified that at the end of the meeting, he as-
signed the shoring erection work to the Carpenters, as
evidenced by notes he took at the meeting which indi-
cate in pertinent part that ‘‘Carpenters install deck
forming & false work,’’ and that his decision was
based on the Employer’s past practice.2
Notwithstanding his presence at the meeting,
Childers thereafter used employees represented by both
Unions to perform shoring erection work. Childers tes-
tified that he did so in an effort to promote labor har-
mony at the jobsite and that shoring erection proceeded
in this manner until January 29. Thus, on the 5 days
during this period that shoring erection was performed,
Childers himself erected shoring with the help of a sin-
gle laborer for 3 days, and assigned the work to two
carpenters and two laborers on 2 other days. On Janu-
ary 29, according to Childers, Carpenters Steward
Dave Woods grieved the use of laborers to perform the
work, stating, ‘‘the practice of the laborers putting the
shoring together in any way, shape or form can’t be
tolerated, and it—and it is solely the work of the car-
penters.’’ In response, Childers retrieved a copy of
Sleister’s notes from the December 29 meeting and
showed it to Laborers Steward David Taylor. Childers
explained to Taylor that he planned to ‘‘stick strictly’’
to Sleister’s assignment of the work to the employees
represented by the Carpenters and said that ‘‘from this
day hence . . . the carpenters will 100% build the
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Tending refers to the practice of ‘‘handling’’ or bringing the un-
assembled shoring forms to carpenters.
4 No party contends that there are any applicable joint union board
determinations that would preclude or otherwise affect the Board’s
Determination of Dispute.
5 The Laborers challenges the effectiveness of the collective-bar-
gaining agreement between the Employer and the Carpenters inas-
much as an unsigned, undated copy of the purported agreement was
submitted into evidence. The Laborers failed to refute, however, the
assertions of the Carpenters and the Employer that neither could find
a signed dated copy, and that the copy entered into evidence was
in fact the applicable agreement governing their relationship.
shoring.’’ Childers added that carpenters would install
the shoring and laborers would ‘‘tend’’ the carpenters.3
On February 9, the Laborers grieved the Employer’s
sole use of carpenters to perform the work. James
Schmitt, the Employer’s president, subsequently con-
tacted Carpenters District Council Business Agent Tom
Sakalauski to propose that composite crews of car-
penters and laborers perform the work. The parties
stipulated that on February 26, Sakalauski told Schmitt
that he would not agree to the use of composite crews
and threatened to picket if the assignment of the work
was changed to permit laborers to share in the erection
of the shoring.
B. Work in Dispute
The disputed work involves the erection of sill,
shoe, horsing, and saddle shoring forms at the Faraday
Hall building addition jobsite at Northern Illinois Uni-
versity.
C. Contentions of the Parties
The Employer contends that its assignment of the
work in dispute to the employees represented by the
Carpenters was proper and was based on 30-year past
practice and its need for efficiency and safety. The
Carpenters contends that the six factors on which the
Board generally relies in resolving jurisdictional dis-
putes establish that the work was properly assigned to
the employees it represents. The Laborers contends
that the Employer’s past practice at this jobsite and
others, area practice, and relative skills and efficiency
support an award of the work in dispute to employees
it represents.
The parties stipulated that there is no agreed-on
method of resolving this dispute and that neither of the
Unions has disclaimed the work.
D. Applicability of the Statute
The record establishes that the disputed shoring
erection work was assigned solely to the employees
represented by the Carpenters on January 29 after the
Carpenters grieved the Employer’s use of composite
crews of carpenters and laborers to perform the work.
Following the Laborers’ grievance of the January 29
assignment of the disputed work to the Carpenters, the
Carpenters threatened to picket the Employer if the as-
signment was changed.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed-on method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act.4 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 this dispute.
1. Certifications and collective-bargaining
agreements
The record does not indicate that either the Car-
penters or the Laborers have been certified by the
Board regarding the employees they represent. Article
1, section 3 of the Carpenters contract, entitled ‘‘Occu-
pation Scope,’’ refers to ‘‘the building, erecting and
dismantling of all scaffolding and staging; the building
and construction of all derricks; the making of mortor
[sic] boards, boxes, and trestles; putting in needle
uprights; all shoring of building, razing and moving
buildings.’’5 Article XXIII of the Laborers contract,
entitled ‘‘Jurisdiction of Work,’’ refers to ‘‘the build-
ing of scaffolding and staging for masons and plas-
ters,’’ ‘‘the shoring, underpinning and raising of all
structures,’’ and ‘‘the assembling and dismantling of
all jacks and sectional scaffolding, including elevator
construction and running of slip form jacks.’’ As both
contracts arguably cover the work in dispute, this fac-
tor equally supports an award of the shoring erection
work to employees represented by each Union.
2. Company preference and past practice
In December 1992, shoring work at the Faraday Hall
project commenced and the work was initially assigned
to carpenters. On December 29, 1992, after attempting
to resolve the Union’s ‘‘rumblings’’ about the disputed
work by bringing the parties together, the Employer
assigned the shoring erection work to employees rep-
resented by the Carpenters. Although Field Super-
intendent Childers was authorized, at least apparently,
301CARPENTERS LOCAL 790 (C. IBER & SONS)
6 It appears that the other projects involved the use of wooden
shoring.
7 The Laborers contends that this factor supports an award of the
work to a composite crew of laborers and carpenters.
8 Rodney Carlson, a district superintendent for CeCo, a construc-
tion contractor whose general practice is to use composite crews to
perform shoring erection, testified that he told Sleister that it would
be more economical for the Employer to use a composite crew be-
cause laborers’ hourly wages are lower than the hourly wages of car-
penters. The Board, however, does not assess economy on the basis
of competing employees’ wage scales.
to accomplish the work as he saw fit and chose to use
composite crews of carpenters and laborers, he ulti-
mately reassigned the work to carpenters and cited the
December 29 assignment as his basis after Carpenters
Steward Wood grieved the performance of any of the
shoring erection work by laborers.
Although the Employer’s initial assignment of the
work to carpenters is entitled to great weight as a re-
flection of its uncoerced preference, that weight is less-
ened slightly by the Employer’s own disregard of the
assignment on the next 5 days that shoring erection
work was performed. Further, whatever weight may be
accorded to the Employer’s return to the initial assign-
ment of the disputed work to carpenters, it too is
somewhat lessened by the fact that the reversion was
the result of the Carpenters’ act—albeit lawful—of
grieving the use of composite crews on January 29.
Notwithstanding the Employer’s wavering with respect
to the actual performance of the work, its position in
this 10(k) proceeding consistently has been that em-
ployees represented by the Carpenters should be
awarded the work. Hence, considering the Employer’s
initial assignment of the work and its position in this
proceeding, we find that Employer preference favors
an award of the disputed work to the employees rep-
resented by the Carpenters.
Sleister cited numerous instances of the Employer’s
assignment of shoring erection work solely to car-
penters at its construction projects in Illinois over the
last 33 years. Five of these jobs entailed its use of tu-
bular steel shoring similar to that used at the Faraday
Hall site.6 The Laborers does not offer substantial evi-
dence bearing on the Employer’s past practice except
to note that it used composite crews at the sites in
issue. Accordingly, the evidence concerning the Em-
ployer’s past practice with regard to the erection of
similar shoring favors an award of the disputed work
to employees represented by the Carpenters.
3. Area and industry practice
The testimony presented by the parties indicates a
varied area and industry practice, with some contrac-
tors assigning work of the type in dispute to car-
penters, other contractors assigning the work in dispute
to laborers, and still other contractors assigning such
work to composite crews.7 Moreover, the testimony of
Carpenters Business Agent Sakalauski and Laborers
Steward Taylor concerning the presence of laborers at
the Northern Illinois University Music Building jobsite
and whether they performed shoring erection work is
in conflict and thus cannot resolve the issue. Therefore,
area and industry practice does not favor an award of
the work to one group of employees over the other.
4. Relative skills
The Carpenters presented evidence that its journey-
man program includes mandatory detailed and intricate
training concerning the measuring, leveling, and bal-
ancing of the shoring forms used in the type of work
disputed herein. The Laborers indicated that it offers
training in shoring erection. Neither Union presented
evidence, however, that carpenters or laborers em-
ployed at the Faraday Hall jobsite had undergone such
training. Further, notwithstanding the Carpenters’ rel-
atively complex description of the skills required, par-
ticularly for leveling shoring, the record establishes
that laborers performed a significant portion of the
work with no complaints or other indications that the
quality of their work was wanting or lower than that
of carpenters who performed the work. Accordingly,
this factor does not favor an award to employees rep-
resented by either Union.
5. Economy and efficiency
The Employer and the Carpenters assert that it is
more efficient to have carpenters perform the work in
dispute because they are more experienced. The Labor-
ers contend that the use of composite crews to perform
shoring erection is the most economical and efficient
method because it avoids idling segments of the work
force while waiting for other segments to finish a
task.8 However, there is no evidence that laborers were
idled at the Faraday Hall construction site while wait-
ing for carpenters or any other craft to finish a task.
Thus, the factors of economy and efficiency do not
favor an award of the disputed work to one union over
the other.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Carpenters Local
790 are entitled to perform the work in dispute. We
reach this conclusion relying on the Employer’s pref-
erence and past practice. In making this determination,
we are awarding the work to employees represented by
Carpenters Local 790, not to that Union or its mem-
bers. The determination is limited to the controversy
that gave rise to this proceeding.
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of C. Iber & Sons, Inc. represented by
Carpenters Local 790 are entitled to perform the erec-
tion of tubular metal shoring, which includes sills,
shoes, horsing, and saddles, at the Faraday Hall build-
ing addition construction site at Northern Illinois Uni-
versity, DeKalb, Illinois.