Essex County Building

National Labor Relations Board - Board Decisions

Jul 2, 1979

243 N.L.R.B. 249 (N.L.R.B. 1979)

ESSEX COUNTY BUILDING & CONSTRUCTION TRADES COUNCIl.
Essex County Building and Construction Trades
Council, and its Constituent Members; Local 502,
International Laborers' Union of North America,
AFL-CIO; and Essex County and Vicinity Carpen-
ters and Millwrights, Local Union 1342, AFL-CIO
and Local 1027, The Federation of Employees
Union and Index Construction Corporation. Cases
22-CD-327, 22-CD 328, and 22-CD 329
July 2, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Local 1027, the Federation of Em-
ployees Union (hereinafter Local 1027), alleging that
Essex County Building and Construction Trades
Council and its Constituent Members (hereinafter
Trades Council); Local 502, International Laborers
Union of North America, AFL-CIO (hereinafter La-
borers Local 502); and Essex County and Vicinity
Carpenters and Millwrights, Local Union 1342,
AFL-CIO (hereinafter Carpenters Local 1342), had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring Index Construction Corporation (herein-
after the Employer), to assign certain work to em-
ployees represented by them rather than to employees
represented by Local 1027.
Pursuant to notice, a hearing was held before Hear-
ing Officer Louis P. Verrone on January 30 and 31,
1979, and on February , 1979. All parties appeared
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues.' Thereafter, Respon-
dent Carpenters Local 1342 filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
Prior to the close of the heanng, each of the Respondent Unions refused
to participate any further because each Union objected to the manner in
which the Hearing Officer was conducting the hearing. However. the record
clearly reveals that each Respondent was fully aware that it could file a
special appeal with the Regional Director for Region 22 with regard to any
ruling of the Hearing Officer. In addition. the record reveals that the Hearing
Officer granted each Respondent an automatic exception to all of his rulings
and permitted each Respondent the full opportunity to explain the purpose
for its exceptions on the record. The record also reveals that the Hearing
Officer permitted each Respondent to cross-examine witnesses on all relevant
issues to the 10(k) proceeding.
ings made at the hearing and finds that they are free
from prejudicial error.2 They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPI O()YER
The Employer, a corporation with its principal
place of business in New York, New York, is engaged
as a general contractor in the building and construc-
tion industry. During the past year, the Employer
purchased in New York and had delivered to a jobsite
in the State of New Jersey goods and materials val-
ued in excess of $50,000. Accordingly, we find that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the purposes of the Act to assert juris-
diction herein.
II. HE LABOR OR(;ANIZAIONS Nvl()IVll)
The parties stipulated that Laborers Local 502 and
Carpenters Local 1342 are labor organizations within
the meaning of Section 2(5) of the Act.
With regard to the status of Respondent Trades
2 At the hearing, each Respondent excepted to the lHearing Officer's rul-
ings, which permitted only limited cross-examination regarding the status of
Local 1027 as a labor organization and the validity of the collectise-hargain-
ing agreement between Local 1027 and the Employer. Those exceptions were
renewed by Carpenters Local 1342 in its bnef to the Board, in which it also
requested that the matter be remanded to the Hearing Officer for the taking
of additional evidence and to allow adequate and proper cross-examination.
We find no merit in those exceptions. The Board has held repeatedly that a
hearing under Sec. 10(k) of the Act "s an nvesligaor. rather than an adver-
sar,. proceeding. the sole purpose of which is to adduce all reliarun evidence
in order to determine whether or not reasonable cause exists to believe that
the Act has been volated (Emphasis supplied.) Bricklavers l,cal Union
No. I ofj Missouri. Bricklavers. Masons and Plasterers Iniernational U'non.
AFL CIO (St Louis Home Insulators, Inc.), 209 NLRB 1072. 1075 (1974).
The status of Local 1027 as a labor organization is not a prerequisite to a
finding that a junsdictional dispute exists, as it has been repeatedly held that
Secs. 8(bX4XD) and 10(k) apply to disputes "between rival groups of em-
ployees." and not only between rival unions See Highav Truckdrivers &
Helpers, Local 107, Internaional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers /f America, Independent (Safeay Stores, Incor-
porated), 134 NLRB 1320, 1322 (1961). In addition, the existence and valid-
ity of the collective-bargaining agreement between Local 1027 and the Em-
ployer is only one factor to be considered by the Board in determining a
jurisdictional dispute, and its legality or illegality "may not be pleaded as a
defense to conduct otherwise in violation of Section 8(bhX4XD)." Interna-
tional Longshoremens and Warehousemen's Union, Local 13, et al. (California
Cartage Company, Inc.), 208 NLRB 986. 990 (1974). In light of the limited
relevance of the status of Local 1027 as a labor organization and the exis-
tence and validity of the collective-bargaining agreement between Local
1027 and the Employer, the Hearing Officer's ruling in which he limited the
extent to which Respondents could cross-examine witnesses regarding those
two factors was entirely proper. Accordingly, we also deny the request of
Carpenters Local 1342 to remand the instant dispute to the Hearing Officer
for the taking of additional eidence.
In addition, subsequent to the close of the 0I(k) hearing. Respondent
Trades Council filed a motion for remand to the Regional Director for the
taking of additional evidence. In its motion. Respondent Trades Council
seeks further hearing on the validity of the collective-bargaining agreement
between Local 1027 and the Employer and on changed circumstances since
the close of the hearing. Since we have not relied on the collective-bargaining
agreement in awarding the work In dispute. and since we see no need for
further hearings on alleged changed circumstances, the motion is hereby
denied
243 NLRB No. 25
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council, the record reveals that it is composed of rep-
resentatives from 17 different organizations, all of
which are labor organizations within the meaning of
Section 2(5) of the Act, including Laborers Local 502
and Carpenters Local 1342. The Council provides as-
sistance to its member unions with regard to em-
ployer delinquency in pension fund contributions,
safety problems on the job, negotiation of collective-
bargaining agreements, and support of labor legisla-
tion. The Council maintains a constitution and by-
laws, and its officers are elected by delegates from
¢each member union. The record further reveals that
Raymond Greeley, president of the Trades Council,
and Martin Shmurak, secretary-treasurer, dealt with
the Employer with regard to the work in dispute as a
representative of all of the trade unions involved in
the proceeding. Since the Trades Council is an or-
ganization in which employees participate and which
exists at least, in part, for the purpose of "dealing
w ith employers concerning ... labor disputes, wages,
rates of pay, hours of employment, or conditions for
work," it is clearly a labor organization within the
meaning of Section 2(5) of the Act.
Local 1027 is an organization composed of em-
ployee-members who attend its meetings and elect its
officers pursuant to a constitution and bylaws. It has
been certified by the Board as the collective-bargain-
ing agent in two different units of employees, existing
for the purpose of entering into collective-bargaining
agreements covering the wages and working condi-
tions of the employees it represents. Accordingly, we
find that Local 1027 is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
On October 25, 1978, the Employer entered into a
collective-bargaining agreement with Local 1027 for
the purpose of employing Local 1027 members at the
various jobsite locations of the Employer. This collec-
tive-bargaining agreement does not cover the work in
dispute herein. Toward the end of 1978, the United
States Department of Housing and Urban Develop-
ment (HUD) awarded the Employer a contract to
renovate a certain building called Corinthian Towers
located at 67 South Munn Avenue, East Orange, New
Jersey. The purpose of the project was to rehabilitate
and convert the 50-year-old structure containing 143
apartment units into a modern structure with an ad-
ditional 221 apartment units. To begin work on the
project, the Employer required the services of labor-
ers to perform general demolition work and related
cleanup duties, and carpenters to perform general
carpentry work such as the installation of doors,
floors, drywalls, windows, and insulation. Utilizing
the services of laborers represented by Local 1027. the
Employer scheduled work on the project to begin on
December 27, 1978.
On December 26, 1978, the Employer's president.
Gary Shaw, received a telephone call from a man
who identified himself as Raymond Greeley, pres-
ident of the Trades Council. Greeley asked Shaw
whose "men" were going to be used on the Corin-
thian Towers job. Shaw informed him that he was
going to use members of Local 1027. Greeley replied
that Shaw could not do that because "we have juris-
diction and we are going to put our men on that job."
When Shaw told Greeley that he had a contract with
Local 1027, Greeley said he did not care about the
contract, and "that [you are] going to get trouble
you are asking for trouble." Greeley then demanded
that a meeting be set up for the next day at the Corin-
thian Towers jobsite between Shaw and a committee
of the Trades Council.
On the morning of December 27. which was the
first day that construction work was performed by
members of Local 1027 at the Corinthian Towersjob-
site, Shaw and John Soures, president of Local 1027,
were confronted in the lobby of the building by a
committee of the Trades Council, led by Greeley.
Shaw and Greeley then engaged in a private conver-
sation away from the other people in the lobby. Gree-
ley, stating that he represented the Trades Council.
asked Shaw who the employees were who were work-
ing on the site, and Shaw informed him that they
were members of Local 1027. Greeley stated that
"this is our job: we have jurisdiction on this job."
When Shaw pointed out that he had a contract with
Local 1027. Greeley replied that "you don't have to
worry about that; we can help you get rid of it."
Shaw indicated that he was happy with his contract
with Local 1027. When Greeley asked how he could
get his men on the job, Shaw told him that much of
the work on the job was still uncommitted, and that
perhaps some work might be awarded to subcontrac-
tors signatory to a collective-bargaining agreement
with one of the Trades Council's affiliated local
unions. Following a general discussion of the other
types of work to be performed in the future on the
jobsite, Greeley asked Shaw if he was in compliance
with prevailing area wages, and Shaw replied that he
was. Greeley again demanded that "he wanted his
men on the job and if [the Employer] didn't [the Em-
ployer] was going to have trouble." When Shaw
asked him if that meant labor trouble and picketing,
Greeley said, "We will see." The meeting then ended.
At no point did Greeley request any documentation
from Shaw regarding Shaw's payment of prevailing
area wages.
250
ItSSEX COUNTY BUII.DING & ('ONSTRUCTION TRADES ('OUN(II.
On his arrival at the Corinthian Towers jobsite on
the morning of December 28, 1978, Shaw observed
approximately 10- 15 people in front of the worksite.
4 of whom were carrying picket signs. wo of the
signs stated approximately the following:
INFORMATIONAL PI('KETIN(;
TIlIS ('ONTRACTOR DOES NO()' AVE A
SI(iNEI) A(;GREMENTI' WF'II I.O('AI. 502, AF-I. (I()
The other two signs read approximately as follows:
INFORMATIONAI. PICKEIING
THIS CONTRACTOR DOES NOT IHAVE WORKERS ROM
I.O(AI. 1342, AFI.-CIO.
Among those participating in the picketing were Ray
Greeley, as well as other members of the Trades
Council Committee who had met with Shaw on De-
cember 27 in the lobby of the Corinthian Towers. The
picketing continued until approximately 2:30 in the
afternoon, at which time all of the picketers voluntar-
ily left.
On December 29, 1978, the picketers returned to
the jobsite. The picketing continued on every work-
day until January 24, 1979, when a United States dis-
trict court judge accepted a consent order in which it
was agreed that picketing at the Corinthian Towers
jobsite would cease during the pendency of the 10(k)
proceedings before the Board, but that thereafter Re-
spondents could resume picketing within 3 days after
filing notice of such intent with the Regional Director
for Region 22. Counsel for the Assistant Regional Di-
rector for Region 22 was not a party to that consent.
B. The Work in Dispute
The work in dispute consists of the demolition, car-
pentry, and cleanup work at the renovation of an ex-
isting structure called Corinthian Towers, 67 South
Munn Avenue, East Orange, New Jersey.
C. The Contentions of the Parties
The Employer and Local 1027 contend that there is
a jurisdictional work dispute; that each of Respon-
dents has violated Section 8(b)(4)(D) of the Act by
picketing the Corinthian Towers jobsite to pressure
the Employer to assign the work to employees repre-
sented by Respondents; and that the work in dispute
should be assigned to employees represented by Local
1027.
Respondents take the position that there is no
showing of a jurisdictional work dispute cognizable
under Section 10(k) of the Act, because: (1) Local
1027 is not a bona fide labor organization within the
meaning of Section 2(5) of the Act, and thus the is-
sues raised in the notice of hearing are not properly
before the Board: (2) the collective-bargaining agree-
ment between Local 1027 and the Employer on which
the Employer relied to award the work in dispute to
employees represented by Local 1027 is a sham trans-
action and certain of its provisions are not being en-
forced, and (3) the picketing engaged in by Respon-
dents was solely for the purpose of protesting the
Employer's failure to pay area standard wages to its
employees.
D. Applicailitv oftihe Statute'
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated
and that the parties have no agreed-upon method for
the voluntary adjustment of the dispute.
There is undisputed testimony in the record that
Ray Greeley, president of the Trades Council, and as
such, a representative of Laborers Local 502 and Car-
penters Local 1342, demanded on December 26 and
27, 1978, that Gary Shaw, the Employer's president.
utilize employees represented by unions who are
members of the Trades Council, rather than employ-
ees represented by Local 1027, on the Corinthian
Towers jobsite. When Shaw refused to comply with
Greeley's demands, Respondents engaged in picket-
ing of the Corinthian Towers jobsite with signs indi-
cating that the Employer did not have an agreement
with Laborers Local 502 and did not use workers
from Carpenters Local 1342.
Respondents did not dispute any of the evidence
above. Rather, they attempted to show that Local
1027 is not a labor organization within the meaning
of Section 2(5) of the Act, and that the collective-
bargaining agreement between Local 1027 and the
Employer was a sham transaction. As noted above in
footnote 2, such factors are of no relevance to the
Board in determining whether there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated. In addition, even if the evidence introduced by
Respondents to dispute the status of Local 1027 as a
labor organization and to dispute the validity of the
collective-bargaining agreement was for the general
purpose of attacking the credibility of the witnesses
called by Local 1027 and the Employer, such evi-
dence is irrelevant because the Board has repeatedly
held that in 10(k) proceedings it is unnecessary to rule
on the credibility of the testimony at issue in order to
proceed to a determination of the dispute.3
I Local Union No 334. Laborers International Union ol' North America,
AFL CIO (C H Heist Corporation)l 175 NLRB 608 (1969) See also Local
472. International Laborers Union, et al. (Ernest Renda Contracting Conmpanv.
Inc.), 123 NLRB 1776 (1959).
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only relevant factors relied on by Respondents
to support their contention that there is no jurisdic-
tional dispute in the instant case is their claim that
their picketing was solely to inform the public that
the Employer was not paying wages to its employees
which were in conformity with local area standards.
Yet the record clearly reveals that Greeley asked
Shaw on only one occasion whether Shaw was in
compliance with prevailing area wages, and Shaw in-
formed Greeley that he was in compliance. At no
time did Greeley or any representative of Laborers
Local 502 or Carpenters Local 1342 request any
documentation from Shaw regarding wage rates or
benefits. Thus, Respondents clearly did not make a
good-faith attempt to ascertain whether the Employer
was paying its employees in conformity with area
standard wages, as required by Board law.4 In addi-
tion, there is evidence in the record indicating that the
Employer has, in fact, been paying its employees area
standard wages and benefits, as required by its con-
tract with HUD. Moreover, the language on Respon-
dent's picket signs indicating that the Employer did
not have a contract with Laborers Local 502 and did
not use workers from Carpenters Local 1342 totally
negate its contention that the purpose of its picketing
was to inform the public of the Employer's failure to
pay area standard wages.' Accordingly, we find that
"an object" of the picketing engaged in by the Re-
spondents was to force or require the employer to
assign the work in dispute to employees represented
by the Respondents. 6
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(bX4XD) has occurred. In addition, all par-
ties to this proceeding stipulated that there is no
agreed-upon method for the voluntary adjustment of
the dispute within the meaning of Section 10(k) of the
Act. Accordingly, we find that this dispute is properly
before the Board for determination.
E. Merils of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to various factors.7 The Board has
See International Union of Operating Engineers Local 571. AFL CIO
(J. E. D. Construction Company. Inc.), 237 NLRB 1386, 1388 (1978); Painters
and Drywall Finishers, Local No. 79 (Richard O'Brien Plastering Co.), 213
NLRB 788 (1974).
5 International Union of Operating Engineers Local 571, A FL -CO (J. E. D.
Construction Company, Inc.), Jupra at 1389; Local 87, International Associ-
ation ofHeat and Frost Insulators and Asbestos Workers, A FL CIO (Sam. P.
Wallace Company, Inc.), 163 NLRB 899 (1967).
6 Cementn Masons Local Union No. 577 (Rocky Mountain Prestress, Inc.),
233 NLRB 923 (1977).
'N.LR.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, A FL CIO lColumbia Broad-
coasting Systemj, 364 U.S. 573 (1961).
held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and
experience reached by balancing those factors in-
volved in a particular case.8 The following factors are
relevant in making the determination of the dispute
before us:
I. Skills and training
The record reveals that the demolition and cleanup
work to be performed at the Corinthian Towers ren-
ovation site requires no special training or skills, and
that the carpentry work to be performed at the ren-
ovation site requires general carpentry skills plus spe-
cific skills depending on the type of work being per-
formed. However, the record does not reveal whether
employees represented by Local 1027, Laborers Local
502, or Carpenters Local 1342 possess the skills neces-
sary to perform the work in dispute. Accordingly, this
factor does not aid us in the determination of the
present dispute.
2. Area and industry practice
There is no evidence in the record as to whether
there is a clear-cut area or industry practice of assign-
ing the work in dispute to employees represented by
any particular union. Accordingly, this factor does
not aid us in the determination of the present dispute.
3. Employer practice
The record reveals that laborers and carpenters
supplied by Local 1027 currently are performing the
renovation work at the Corinthian Towers jobsite.
Since this is the only evidence in the record as to the
Employer's practice in assigning the type of work in
dispute, this factor favors an award of the work in
dispute to employees represented by Local 1027.
4. Efficiency and economy
The record reveals that the Employer would expe-
rience no greater efficiency and economy of operation
by utilizing employees represented by Respondent
Unions rather than employees represented by Local
1027. Accordingly, this factor does not aid us in the
determination of the present dispute.
5. Employer preference
The Employer assigned the work in dispute to em-
ployees represented by Local 1027. The Employer re-
peatedly indicated that it prefers to assign the work in
I International Association of Machinists, Lodge No. 74,. A Fl. ('10 (J. 4.
Jones Construction Companv), 135 NLRB 1402 (1962).
252
ESSEX COUNTY BUILDING & CONSTRUCTION TRADES COUNCIL3
dispute to employees represented by Local 1027, and
it has been entirely satisfied with the work performed
by employees represented by Local 1027. Accord-
ingly, we find that this factor favors the award of the
work in dispute to employees represented by Local
1027.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude
that the employees represented by Local 1027 are en-
titled to perform the work in dispute. In reaching this
conclusion, we have relied on the Employer's practice
and preference. In making this determination, we are
awarding the work in dispute to the employees of the
Employer who are represented by Local 1027, but not
to that Union or its members. The present determina-
tion is limited to the particular controversy which
gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
I. Employees of Index Construction Corporation
who are represented by Local 1027, The Federation
of Employees Union, are entitled to perform the dem-
olition, carpentry, and cleanup work for the Index
Construction Corporation at the renovation of an ex-
isting structure called Corinthian Towers, 67 South
Munn Avenue, East Orange. New Jersey.
2. Essex County Building and Construction Trades
Council, and its Constituent Members; Local 502, In-
ternational Laborers' Union of North America.
AFL-CIO; and Essex County and Vicinity Carpen-
ters and Millwrights, Local Union 1342, AFL-CIO.
are not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Index Con-
struction to assign to work in dispute to employees
represented by those labor organizations.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Essex County Build-
ing and Construction Trades Council, and its Con-
stituent Members; Local 502, International Laborers'
Union of North America, AFL-CIO; and Essex
County and Vicinity Carpenters and Millwrights. Lo-
cal Union 1342, AFL-CIO, shall notify the Regional
Director for Region 22, in writing, whether or not
they will refrain from forcing or requiring the Em-
ployer, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the work in dispute in a manner
inconsistent with the above determination.
253