L. E. Mcgraw Construction, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1987

283 N.L.R.B. 598 (N.L.R.B. 1987)

598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
L. E. McGraw Construction , Inc. and Laborers
Union Local No. 1130, affiliated with Laborers
International Union of North America, AFL-
CIO and Carpenters Local Union No. 1235,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 32-CD-98
10 April 1987
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
The charge in this Section 10(k) proceeding was
filed 20 August 1986 by the Employer, alleging
that the Respondent, Laborers Union Local No.
1130, affiliated with Laborers International Union
of North America, AFL-CIO (Laborers Union),
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 Carpenters' Local
Union No. 1235, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO (Carpenters
Union). The hearing was held 20 October 1986
before Hearing Officer David Dominguez.'
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 Employer, a California corporation, with an
office and place of business in Modesto, California,
is engaged as a general contractor in the building
and construction industry. It was undisputed and
we fmd that during the past year, a representative
period, the Employer purchased and received
goods or services valued in excess of $50,000 di-
rectly from suppliers located outside the State of
California. It is undisputed and we fmd that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. It is un-
disputed and we find that Laborers and Carpenters
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In December 1985 the Employer entered into a
contract to perform as general contractor over the
construction of the Modesto Community Center
Parking Garage. The Employer employs 12 car-
penters to perform such duties as installing, ' assem-
bling, setting, stripping, dismantling, and reusing
concrete foundation forms. Apprentice carpenters
size and pack timber and do general cleanup func-
tions in addition to assisting journeymen carpenters
with the foregoing duties.
The present dispute arose in August 1986. Busi-
ness agents of the Laborers Union approached
Larry E. McGraw, the president of the L.E.
McGraw 'Construction Company, and stated that a
portion of the work being performed by- the car-
penters on the Modesto Community Center Park-
ing Garage Project was- laborers' work and de-
manded that the work be assigned to its members.
The work then being performed by the carpenters
consisted of setting the forms into which the
cement was poured, removing or "stripping" the
forms which were designated to be moved to an-
other location, and reinstalling the forms for the
next cement pour. McGraw refused to assign the
disputed work to the laborers. At that point, Rich-
ard Crispin, who had identified himself as a busi-
ness representative of the Laborers Union, stated
that if the Employer was refusing to assign the dis-
puted work to members of the Laborers Union that
the Employer was "not leaving us much choice
except to picket the job." The jobsite was picketed
by the Laborers Union from 20 August through 9
September 1986, at which time a preliminary in-
junction against the picketing was issued by the
Federal district court in Fresno, California. One of
the pickets, Amos Earl McElvanie, identified him-
self as a member of the Laborers Union, stated that
his Union's business agent knew he was picketing
this jobsite, and further stated that the reason he
was picketing was because he wanted the Employ-
er to assign the disputed work to members of the
Laborers Union.
B. Work in Dispute
The disputed work consists of the fabrication, as-
sembly, and/or installation of the wood and/or
metal concrete foundation forms at the Modesto
Community Center Parking Garage, 1101 9th
Street, Modesto, California.2
' The Laborers Union and the Carpenters Union neither participated in
the hearing nor filed posthearing briefs.
2 Since no objection was made by any of the parties involved in this
dispute, we adopt the description of the work in dispute set forth in the
Continued
283 NLRB No. 87
L. E. MCGRAW CONSTRUCTION
C. Contentions of the Parties
The Employer contends that the disputed work
should be assigned to employees represented by the
Carpenters Union, an intervenor in this case, be-
cause the Carpenters Union is certified as the col-
lective-bargaining representative of its employees
and because there exists a current collective-bar-
gaining agreement between the Carpenters Union
and the Employer. The Employer further argues
that each of the factors which the. Board considers
in disputes of this nature weighs heavily in favor of
such assignment to the employees represented,by
the Carpenters Union. In addition, the Employer
requests an order awarding similar work in like
projects to employees represented by the Carpen-
ters Union, including any and, all projects on which
the Employer may now be working, or on which it
may work, in any of the 46 counties covered by
the collective-bargaining agreement to which it is
signatory.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 there is no agreed-upon method
for the voluntary adjustment of the dispute.
As noted above, in August 1986 business agents
of the Laborers Union approached the Employer
and demanded that the disputed work be assigned
to its members. When the Employer refused to
make such assignment, Richard Crispin, a business
representative of the Laborers Union, threatened to
picket the jobsite. Subsequently, the jobsite. was
picketed by the Laborers Union from 20 August
through 9 September 1986. One of, the pickets
stated that he was picketing the jobsite because he
wanted the Employer to assign the disputed work
to the laborers and that his Union's business agents
were aware of this conduct. Based on the forego-
ing, and the record as a whole, we find that rea-
sonable cause exists to believe that the Laborers
Union violated Section 8(b)(4)(D) of the Act.
There is no current agreed-upon method for the
voluntary adjustment of, the dispute to which all
parties are bound. Accordingly, this dispute is
properly before the Board for determination.
notice of hearing served on the parties. However, we note that the instal-
lation of the forms by the carpenters comprises a continuous process and
necessarily entails stripping the forms so that they may be reused.
In addition to pouring the cement into the wooden forms, the cement
masons may on occasion assist the carpenters in setting up the forms.
There is no contention that any work performed by the cement masons is
in dispute
599
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 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. Certifications and collective-bargaining
agreements
It is undisputed that the employees of the Em-
ployer are represented either by the Carpenters
Union or the Cement Masons Union, but' are not
represented by the Laborers Union. It is, also undis-
puted that the Carpenters Union has been certified
as the, exclusive bargaining representative of the
particular group of employees who are performing
the disputed work. Moreover, it is undisputed that
the carpenters are performing their work under a
signed collective-bargaining agreement which for
over 9-1/2 years has been interpreted by the parties
thereto as covering the type of work which is in'
dispute.
The Laborers Union has, never been a party to a
collective-bargaining agreement with the Employ-
er, nor have any of its members ever been em-,
ployed by the Employer. We find that the Employ-
er's collective-bargaining agreement with the Car-
penters Union encompasses the disputed work.. Ac-
cordingly, we conclude that-the ,factors of certifica-
tions and collective-bargaining agreements favor
the Employer's assignment.
2. Company preference and past practice
It is undisputed that the Employer has during
the past 9-1/2 years used carpenters to perform the
type of work in dispute. Furthermore, it is also un-
contested that the Employer has never directly em-
ployed any members of the Laborers Union to per-
form the type of work in dispute or any other type
of work. We therefore find that the Employer's
past practice favors the assignment of the disputed
work to employees represented by the Carpenters
Union.
At the hearing, the Employer, through` the testi-
mony of its president, expressed its preference that
the disputed work be awarded to its employees-
represented by the Carpenters Union. While we do
not afford controlling weight to this factor, we find
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, it tends to favor an award of the work in dis-
pute to employees represented by Carpenters.
3. Area practice
The undisputed testimony of the Employer indi-
cates that it is a common practice of construction
companies on similar types of construction projects
in the area in the State of California to assign work
similar to that in dispute here to carpenters and not
laborers. 'We therefore find that this factor tends to
favor an award of the work in dispute to employ-
ees represented by the Carpenters Union.
4. Relative skills and safety
The undisputed testimony of the Employer indi-
cates that the disputed work requires the skills of a
carpenter, and that these skills are not possessed by
laborers. Specifically, the testimony establishes that
the Employer has trained the carpenters employed
by it to set and strip forms. In this regard, the Em-
ployer testified that its carpenters have been em-
ployed by it for some years and are experienced
working together as a unified crew. The uncontra-
dicted testimony,-of the Employer also indicates
that skill is required in dismantling the forms be-
cause 95 to 98 percent of them are reused.
Additionally,- the Employer testified that safety is
a factor it considers in assigning the work to em-
ployees represented by the Carpenters Union be-
cause the job requires the use of heavy tools which
are typically not possessed by the members of the
Laborers Union and which they are not authorized
to use. ,We therefore find that the combined factors
of relative skills and safety favor an award of the
work in dispute to employees represented by Car-
penters.
'5. Economy and efficiency of operations
The Employer presented undisputed evidence
that an award of the work in dispute to employees
represented by Carpenters Union will result in
greater, flexibility in the utilization of its work force
and in greater efficiency and economy of oper-
ations. As noted above, employees represented by
the Carpenters Union have experience performing
the work, in dispute because in the past they have
been assigned work similar to that in dispute. In
addition, the disputed work is intermittent and
when carpenters are not engaged in performing the
disputed work, the Employer assigns related work
to carpenters which it would be unable to assign to
laborers. Accordingly, we find that the factor of
economy and efficiency of operations favors an
award of the disputed work to employees repre-
sented by the Carpenters Union.
6. Job impact
The Employer testified that if an award, of the
disputed work is made to employees represented
by the Laborers Union, the Employer will be
forced to lay off four carpenters. Accordingly, we
find that the factor of job impact favors the Em-
ployer's assignment.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Carpenters
Local Union No. 1235, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, are
entitled to perform the work in dispute. We reach
this conclusion relying on the facts that such an
award is consistent with the Employer's current
collective-bargaining agreement with the Carpen-
ters Union; the employees represented by the Car-
penters Union possess the requisite skills to perform
such work and they can perform such work in a
safe manner; such an award will result in greater
economy and efficiency of operations and will not
result in an adverse impact on jobs; the assignment
is in accord with area practice; - and it is - consistent
with the Employer's past practice and preference.
In making this determination, we are awarding the
work to employees represented by Carpenters
Local Union No. 1235, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, not
to that Union or its members. In consequence, we
also find that Laborers Union ' Local No. ,1130, af-
filiated with Laborers International Union of North
America, AFL-CIO, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
or require the Employer to assign the disputed
work to employees it represents. The present deter-
mination is limited to the particular controversy
which gave rise to this proceeding.3
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of L. E. McGraw Construction,
Inc., who are currently represented by Carpenters
Local Union No. 1235, United 'Brotherhood of
Carpenters and Joiners of America,- AFL-CIO,' are
entitled to perform the fabrication, assembly,
and/or installation of the wood and/or metal 'con-
crete foundation forms at the Modesto Community
3 Since the facts do not demonstrate that the Laborers,Union has a
proclivity to engage in further unlawful conduct in order to obtain work
similar to that to dispute, we deny the Employer's request to issue an
award encompassing the geographical area of the 46 counties covered by
the collective-bargaining agreement to which it is signatory.
L. E. MCGRAW CONSTRUCTION 601
Center Parking Garage at 1101 9th Street, Modes-
to, California.
2. Laborers Union Local No. 1130, affiliated
with Laborers International Union of North Amer-
ica, AFL-CIO is not entitled by means proscribed
by Section 8(bx4)(D) of the Act to force or require
L.E. McGraw Construction, Inc. to assign the dis-
puted work to employees represented by it.
3. :Within{ 10 days from this date, Laborers Union
Local No. 1130, affiliated with Laborers Interna-
tional Union of North America, AFL-CIO shall
notify the Regional Director for Region 32 in writ-
ing whether it will refrain from forcing the Em-
ployer, by means proscribed by Section 8(b)(4)(D),
to assign the disputed work in a manner inconsist-
ent with this determination.