Laborers International Union Local 264

National Labor Relations Board - Board Decisions

Nov 13, 1980

253 N.L.R.B. 288 (N.L.R.B. 1980)

DF CISIONS OF NATIONA. LABOR RELATIONS BOARD
Laborers International Union of North America,
AFL-CIO, Local Union No. 2641 and Arrow-
head Building Materials and Building Materials,
Excavating, Heavy Haulers, Drivers,
Warehousemen and Helpers ocal No. 541, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 17-CD-264
November 13, 1980
I)ECISI()N AND DETERMINATION OF
DISPUTE
13 CIAIRNIMAN FANNING ANI) MHIEMBERS
JENKINS ANI) PItNI I O
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Arrowhead Building Materi-
als, hereinafter called the Employer, alleging that
l aborers International Union of North America,
AFL-CIO, Local Union No. 264, herein called the
Laborers, had violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring the Employer to
assign certain work to employees represented by it
rather than to employees represented by Building
Materials, Excavating, Heavy Haulers, Drivers,
Warehousemen and Helpers Local No. 541, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Teamsters.
Pursuant to notice, a hearing was held before
Hearing Officer Mary Cracraft on June 20 and July
10, 1980.2 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, the Employer filed a brief
which has been duly considered.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
makes the following findings:
I. THEi! BUSINISS 01 OFHI EM'I OYIR
The parties stipulated, and we find, that the Em-
ployer is a Delaware corporation with offices lo-
cated in Kansas City, Kansas, where it is engaged
in supplying materials to the building and construe-
' The rlanlCe f this IJrliiill appcal J1 a llcnded til hee hearing
2 All dates h i ereii ire ill 198(, unles~s itColCr is t idicztted
tion industry. The parties further stipulated, and we
find. that the Employer annually purchases goods
and materials valued in excess of 5().00() directly
from sources located outside the State of Kansas.
The parties also stipulated, and we find, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it
will effectuate the purposes of the Act to assert ju-
risdiction herein.
11. T111L I ABOR OR(,ANIZAT'IONS INVOI VII)
The parties stipulated, and we find, that the lIa-
borers and the Teamsters are labor organizations
within the meaning of Section 2(5) of the Act.
Ill. TiL I)SPU'iL 1F
A. Background und ucts oj the Disputc
The Employer is a supplier of drywall materials
to the construction industry and serves subcontrac-
tors or contractors on various construction projects
in and around Kansas City, Kansas, and Kansas
City, Missouri Its employees do not install or erect
the wallboard, or move it about the jobsite once it
has been delivered and placed. Rather, they only
deliver wallboard and related supplies to construc-
tion sites when requested by the contractor. In
most cases, contractors will place an order with
the Employer on the same day it is needed. Conse-
quently, the Employer finds it essential to have em-
ployees on its premises who are ready and able to
fill the orders of its customers.
Employees of the Employer engage in yardwork
and in delivery work as drivers or helpers. When
employees are assigned to make a delivery, two
employees are usually sent with each truck. One
employee drives and operates any power equip-
ment needed to complete delivery, while the other
employee assists. However, the Employer does not
have separate classifications for drivers and helpers,
and employees may be assigned to perform either
function during a delivery.
As a condition of delivery, contractors generally
will require that drywall materials be "stocked" or
"scattered" in various amounts and at various
places around a jobsite. Typically, the driver will
maneuver the Employer's loaded vehicle to a loca-
tion as close as possible to the final resting point
for the material. Then, with the use of a boom,
which is a mechanical device mounted on the truck
used for lifting and moving bundles of wallboard,
and power jacks, the driver makes the "first drop"
of the material onto the ground, a dolly, or onto
the floor of a partially constructed structure. If the
material must be moved from the location of the
"first drop," the driver and helper guide the dolly
253 NLRB No. 37
288
LABORFRS INTERNATIONAI, UNION I.()LCAL. 264
or carry the board to the location of the "second
drop."
On November 9, 1979, pursuant to a Stipulation
for Certification Upon Consent Election, the em-
ployees of the Employer voted 10 for and 3 against
representation by the Teamsters. On April 14,
1980, the Board certified the Teamsters as the ex-
clusive representative of all full-time and regular
part-time drivers, helpers, and yardmen employed
by the Employer.3
Some time in May, two employees of the Em-
ployer, Mike Barbarich and Bill Roberts, were en-
gaged in delivering sheetrock and soundboard to a
Cable Vision construction site in Kansas City, Mis-
souri. As the two employees had almost completed
removing the sheetrock from their truck, prepara-
tory to carrying the sheetrock to the locations
specified by the construction superintendent, they
were approached by Laborers Business Agent Co-
lumbus Sumpter, who asked to see their union
cards and then informed them that they would
have to quit unloading since both employees were
not members of a Laborers local. After a telephone
call to the Employer's office, during which Sump-
ter reiterated his position, the employees reloaded
the sheetrock and returned with it to the Employ-
er's yard.4
A few days after this incident, the Employer at-
tempted to complete the delivery of sheetrock to
the Cable Vision site. The Laborers business agent,
William Stapleton, stopped the two delivery em-
ployees, Kirk Hahner and Mike Hill, and told them
that if they tried to unload the sheetrock he had a
banner in his car that he would put on the job.
After Stapleton spoke on the telephone with Paul
Haunschild, a supervisor for the Employer, Hahner
: Subsequently, the Teamsters filed a charge in Case 17-CA-9707 in
which it alleged that the Employer unlawfully refused Itl hargain with it
The Employer therein admitted its refusal to bargain. hut contested the
validily of the eamster, certification. The Regional Director for Region
17 issued a complaint in this case on June 10. and on July 10. upon
mollion b counsel filr the General Counsel the Board issued an order
transferring the proceeding t the Board and a Notice T Sholu Cause
Thereafter. in a Decision and Order issued Noember 12. 1980, the
Board found no merit n the Employcr's challenge to the Teamsters certi-
fication, and accordingl) ordered the Employer to bargain wilh the
Teamsters .4rrom,heud Building Materal,. 253 NlRB No 32 (1
9
80)
On July 14. the Employer filed ith the Board a Motion To Revoke
Certification in the representaiion case, Case 17-RC 8892, which under-
lies the ahoe-described case The Employer contenlded therein that the
Teamsters certification should he revoked because the Teamsters dis-
claimer in the instant case, discussed n/fru, demonstrates that Inion's dis-
interest in representing a number of employees of the Employer On July
17. the Board referred the Employer's motion to the Regional Director
fir ruling On July 28, the Acting Regional Director denied the Employ-
er's Motion To RevoKke Certification The mploy r filed wuith the Board
a request for review: of the Acting Regional Direclor's denial of its
molion, hich suas denied b hy e Board by telegraphic order dated No-
vember 4, 1980
Howev er, arharich who held Iabhorers card. was permitted to de-
liver he soundhoard since Iho, panels sesre light enough for arbarich
lo carry ithou aistanc
and Hill were instructed to return to the yard with
the sheetrock, which they did.
Sometime in late May or early June, the Em-
ployer attempted to fill an order for sheetrock at
the Bannister Mall construction site in Kansas City,
Missouri. As the Employer's employees began re-
moving the bundles of sheetrock from its flatbed
truck, Laborers Agent Sumpter asked Haunschild,
who was present at the Bannister Mall site, wheth-
er the two employees unloading the trucks were
members of the Laborers. When Haunschild stated
that they were not, Sumpter expressed his displeas-
ure about the lack of Laborers members available
to move the sheetrock from the "first drop" at the
truck to the specified delivery location. Sumpter
stated that if employees represented by the Labor-
ers were not used to carry the sheetrock to its des-
tination he might shut down Hall-Missouri, the sub-
contractor to which the sheetrock was delivered.
To forestall any delay, the president of Hall-Mis-
souri, Bill Hall, offered to provide one of his em-
ployees, a Laborers member, to assist in delivery,
but the Employer completed the delivery using its
own employees who held Laborers cards.
B. The Work in Dispute
The work in dispute is described in the notice of
hearing as "the distribution of materials on jobsites
after the materials have been removed from the
Employer's vehicles;" more particularly, the dis-
puted work consists of the transportation of shee-
trock or other drywall materials, either by hand-
carrying or through the use of a dolly or handcart,
from the point at which such materials have been
removed from the Employer's truck (the "first
drop") to the locations designated for delivery by
the contractor or subcontractor purchasing the ma-
terial (the "second drop").
C. Contentions of the Parties
The Laborers and Teamsters moved that the
notice of hearing be quashed on the grounds that
there is no jurisdictional dispute between them.
They contend that employees represented by La-
borers are entitled to the disputed work because it
and the Teamsters have had an agreement since
1947, signed by their respective international
unions, awarding the work in dispute to employees
represented by the Laborers. Moreover. the Team-
sters disclaims the work in dispute.
The Employer argues that the motion to quash
should be denied, as a jurisdictional dispute exists
notwithstanding the 1947 Laborers-Teamsters
agreement and the Teamsters' disclaimer. The Em-
ployer contends that the Unions' evidence in sup-
port of their motion is controverted by the Em-
299
I)ECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
ployer's nonparticipation in the drafting of the 1947
agreement, and by its employees' expressed desire
to continue to perform the disputed work. On the
merits of the dispute, the Employer contends its
employees should continue to perform the disputed
work based on the Employer's preference and past
practice. economy and efficiency of operations, and
the impact on the present work force.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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 not agreed upon
a method for the voluntary adjustment of the dis-
pute.
It is uncontested that on three occasions in May
and June, agents of the Laborers advised the Em-
ployer that its employees would not be permitted
to enter the construction jobsite to unload shee-
trock unless they could produce Laborers cards,
and that on at least two occasions these agents
threatened to create a work stoppage at the jobsite
if the Employer attempted to complete delivery
without using employees represented by the Labor-
ers. This threat clearly constitutes a threat of seri-
ous economic harm, and is coupled with the stated
aim of forcing the Employer to assign particular
work to members of the Laborers rather than to
employees of the Employer, represented by the
Teamsters, to whom the work had been assigned.
Accordingly, we find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred.
Moreover, we find no merit in the Teamsters'
and Laborers' claim that no dispute exists because
the Teamsters has disclaimed the work. In this
regard, we note that the employees represented by
the Teamsters, on whose behalf the Teamsters has
purportedly executed the disclaimer, have clearly
demonstrated their desire to continue to perform
the disputed work.5 Therefore, we accord no
weight to the disclaimer filed by the Teamsters. 6
We find further that at the time of the dispute
there did not exist any agreed-upon or approved
method for the voluntary adjustment of the dispute
to which all parties to the dispute were bound. As
noted above, in their motion to quash, the Unions
contend that there is no jurisdictional dispute since
Fvidetlnce in support of the enlployees' desire to continue to perform
this work includes testimony by emplioyees at the hearing and a petition
signed by all the employees in the unit, as well as the emplolyees' cntin-
ued performance of the work during the pendency of his proceeding.
" See Inte,raturional Bnotlherhoid of Electrical Worker. Lcaul No. 610
(L.atduu Ouidi'*r Sign Company. Inc). 225 NLRIn 321) (1976); (;enerul
I anmterv Local 326, affiliated with International Brotherhoad of lIeuernit.
(huuJi'ur, W'urehoulemen and Il/elpcrv .mericu (azor l.xprcs. Incor-
poratedi 203 NI.RI 100)2 11973)
the parties are bound by a 1947 agreement between
the Internationals of the Teamsters and Laborers
which provides that the disputed work is within
the Laborers' jurisdiction. However, the Employer
was not a party to that agreement, and there is no
evidence that, by operation of a collective-bargain-
ing agreement or otherwise, the Employer intended
to be bound to that agreement. Therefore, we find
that the agreement does not constitute an agreed-
upon method for the voluntary adjustment of this
dispute to which all parties are bound.7 Nor does
the record show that there exists any other agreed-
upon method for the voluntary adjustment of this
dispute binding all the parties. Accordingly, we
deny the joint motion to quash and find that this
dispute is properly before the Board for determina-
tion under Section 10(k) of the Act.
E. Merits 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 relevant factors.8
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case. 9
The following factors are relevant in making the
determination of the dispute before us:
1. Board certifications
There are no orders or determinations of dispute
by the Board awarding jurisdiction of the work in
dispute to employees represented by either of the
Unions involved in the present proceeding.
On April 14, the Board certified the Teamsters
as the exclusive representative of all the Employ-
er's yardmen, drivers, and helpers, including, inter
alia, all employees who have been assigned by the
Employer to perform the disputed work. This is a
factor favoring an award of the work in dispute to
employees represented by the Teamsters."o
2. Collective-bargaining agreements
The Teamsters and the Employer have not ex-
ecuted a collective-bargaining agreement covering
the employees involved in the instant dispute. In
I Local 965. International Union of Operating Engineer. .41L-('10
(Iwinl-State Gang-Vaill Sruclures. Inc.). 249 NLRB 894 (19811)
N.I.R.B R. . Radio d leleviiion Broadcart Engtneer U'nion. Local
1212. Inrernationul Brotherhood ofJ' Elrrricl Workers. A.-CIO [Colum-
hiua Boadcaring Sysrem], 364 U.S. 573 (1961).
" Internatmonal Axocurialn of Murachinrt. Lodge No. 1743. AFL-CIO (J.
4. Jones Co(nsructionl Company), 135 NLRH 14102 (1962).
"' See nited ,l ocaiurion of Journemen ard Apprenrc ofj rhi Plumbing
rrd 'ipfitring Indu trv of the United Slrati and Canuda. Plumbers Lxocal
55. A/I-CIO (Midwet Prcnirerred Corporation). 184 NI.RB '0)1. 904
(1970).
L.AB()RERS INTERNATI()NAI UNION, LO.()CAl 264
1975, the Employer signed a "participation agree-
ment" with the Laborers, by which it agreed to be
bound to the collective-bargaining agreement then
in effect between the Builders Association of Mis-
souri and Locals 264, 555. and 1290 of the Western
Missouri and Kansas District Council of the Labor-
ers' International Union of North America. This
agreement included language delineating the La-
borers' work jurisdiction. The record does not
demonstrate that the Employer at any time evi-
denced a desire to terminate this agreement. How-
ever, it appears that the Laborers provided no rep-
resentation for any employees of the Employer, T'
and the Employer's contact with the Laborers
prior to the instant proceeding was limited to pay-
ments into various Laborers benefit funds on behalf
of its employees who were members of the Labor-
ers. It also appears that the Employer informed the
Laborers that it would cease making these pay-
ments after the Teamsters was certified to repre-
sent the employees of the Employer. The record
reflects that the Laborers raised no objections to
the Employer's decision to discontinue these pay-
ments. Therefore, the existence of the "participa-
tion agreement" and the parties' conduct pursuant
to it does not demonstrate that the jurisdictional
provisions of the Laborers' area agreement govern
this dispute.
Accordingly, we find that this factor is of no
value in determining the dispute before us.
3. Employer practice and preference
The Employer has consistently assigned the dis-
puted work to its employees now represented by
the Teamsters, and is satisfied with and maintains a
preference for this assignment. This factor favors
an award of the disputed work to employees repre-
sented by the Teamsters.
4. Area practice
The Employer presented evidence that its prac-
tice with regard to assignment of the disputed
work is similar to that of other drywall suppliers in
the area. However, James Hutton, director of the
Builders Association of Missouri, in testimony elic-
ited by the Laborers, asserted that, as reflected in
the Laborers area agreement, area practice is to
assign the disputed work to employees represented
by the Laborers. Accordingly, this factor does not
favor assignment of the work to either group of
employees.
" The I aorcr,. id n(] rill llict't l or liltr .It' pirltlpaltc im til' cc-
iln pr'eedllng h 1 hihl th' I tallclrlr' usc iinrtll It rLcprt c tl Atlt
Fmpl