Laborers, Local 576

National Labor Relations Board - Board Decisions

Feb 22, 1972

195 N.L.R.B. 511 (N.L.R.B. 1972)

LABORERS , LOCAL 576
Laborers' International Union of North America, Lo-
cal Union # 576, AFL-CIO and Franki Foundation
Company and Local No. 64, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO. Case
9-CD-233
February 22, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge by Franki Foundation Company, herein called
the Company, alleging that Laborers' International
Union of North America, Local Union # 576, AFL-
CIO, herein called Laborers, had violated Section
8(b)(4)(i) and (ii)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or requir-
ing the Company to assign certain work to employees
represented by it rather than to employees represented
by Local No. 64, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called Car-
penters. Pursuant to notice, a hearing was held before
Hearing Officer Edward C. Verst on July 12, 13, and
14, 1971. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. Thereafter, the Company and Labor-
ers filed briefs which have 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 connection with this proceeding to a three-
member panel.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board makes
the follow findings:
I THE BUSINESS OF THE EMPLOYER
The Company is engaged throughout the United
States in the construction of concrete foundations for
multistory buildings. At the time of the hearing, it was
so engaged at a construction project in Louisville, Ken-
tucky. During the 12 months preceding the hearing, the
Company purchased goods and materials valued in ex-
cess of $50,000 from firms outside the State of Ken-
tucky, which are shipped directly to the Company's
jobsite in Louisville.
We find that the Company is engaged in commerce
within the meaning of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
195 NLRB No. 96
II THE LABOR ORGANIZATIONS INVOLVED
511
Laborers and Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
At the time of the hearing herein , the Company was
engaged as a subcontractor in the construction of con-
crete foundation footings (pilings) to support a multi-
story building in Louisville , Kentucky.
The Company, which began operating in the United
States in 1951, uses the "Franki Pressure Injected Foot-
ing" process (P.1.F) in building the footings below
ground level. This process is unique and relatively new
in the United States . In the construction of the uncased
footings the Company uses a special machine known in
the industry as a Franki rig. The machine consists of,
inter alia, a vertical tower with cables and pulleys used
to raise and lower an impact hammer , and a bucket and
hopper from which increments of concrete are placed
into the soil through a drive tube to construct the foot-
ings. The impact hammer is used to force the drive tube
to a desired depth in the soil.
The Franki rig requires a crew of seven men; i .e., two
hoist men who are members of the Operating Engineers
Union , and five piledrivers, including a foreman, all of
whom are members of the Carpenters.
The hoist men are responsible for actual operation of
the machinery ; that is , the raising and lowering of the
drive tube , the impact hammer , the bucket , and the
hopper. There is no dispute concerning the performace
of this work by members of the Operating Engineers
Union.
At the beginning of the operation the piledriver crew
is responsible for the proper leveling of the machine
over the site of the uncased foundation footing. This
sometimes require the shoveling of dirt by the use of
hand- shovels, or the insertion of lumber as shims under
the machine and the removal of excess dirt and debris
from the immediate area of the rig. At the second step
the drive tube is pulled and sunk to the desired depth
into the soil by using the impact hammer to compress
and to drive a plug of granular material to form the
base of the footing at the lower end of the drive tube.
The third step is the transfer of concrete by chute from
the transit mix truck into the hopper, thence to the
bucket which is raised by the rig to the top of the drive
tube . At the fourth step small increments of concrete
are injected into the tube and compressed by the impact
hammer , which also drives the material out of the bot-
tom of the tube into the surrounding subsoil , thus form-
ing the base of the pile . The tube is then gradually
withdrawn to the surface while additional increments
of concrete are injected into the tube and compressed
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the impact hammer until the footings reach their
intended height.
Although the finished product ends up in the ground
as a "pile," the method of inserting it is not strictly a
"driving" operation because of the unique Franki sys-
tem which apparently is different from other "pile driv-
ing" operations. But since the finished product resem-
bles a "pile," the Company has abided by the
Carpenters claim that the work belongs to its members,
and for many years has assigned members of that Un-
ion exclusively to the Franki crew.
B. The Work in Dispute
The disputed work concerns the manning of the
Franki rig used in the construction of concrete founda-
tions, handling, shoveling, and dumping of concrete,
sand, and gravel; the transfer of concrete to the hopper
from a transit mix truck and the moving of concrete
within the hopper; the shoveling of dirt or the leveling
of soil around the rig; the hauling by wheelbarrow of
sand and gravel; and the placing of these materials into
the hopper and bucket.
C. Contentions of the Parties
The Company's position is basically one of neutral-
ity. The Company, even though satisfied with the per-
sonnel supplied by the Carpenters, has no objection to
a composite piledriver crew; i.e., two laborers, a fore-
man, and two carpenters with pile-driving skill and
experience. However, it argues strongly that the size of
the crew should not be increased because of high labor
cost.
The Carpenters contends that the work in dispute
should be awarded to its members who have tradition-
ally and historically performed the work.
The Laborers contends that the work in dispute
should be awarded to its members because a collective-
bargaining contract between General Contractors As-
sociation of Louisville, Inc., and the Laborers' Interna-
tional Union has been adhered to by the Company. The
kind of work involved is normally and traditionally
performed by laborers; the assignment of a composite
crew would be feasible; and its claim to the work has
been recognized by the National Joint Board for the
Settlement of Jurisdictional Disputes and the Interna-
tional Unions involved.
All parties agree that the award should be applicable
to similar disputes between the two labor organizations
wherever the Company operates in the United States.
D. Applicability of the Statute
The charge herein alleges a violation of Section
8(b)(4)(D) of the Act. The facts show that the Com-
pany assigned the work to its employees who are mem-
bers of the Carpenters. The Laborers demanded that
the Company take the work away from carpenter pile-
drivers and assign it to laborers. The parties stipulated
that, when the Company refused to comply with this
demand, the Laborers picketed the premises and
caused a work stoppage. Accordingly, we find that
there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated and that the
dispute is properly before the Board for determination
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 all relevant factors.'
1. Certification and collective-bargaining agreements
As there is no Board certification of either union,
neither Laborers nor the Carpenters is favored by this
factor.
As noted supra, the Company assigned the work in
dispute to its employees who are covered by its collec-
tive-bargaining agreement with the Carpenters. The
Laborers argues that the collective-bargaining agree-
ment between the Laborers' International and General
Contractors Association of Louisville, Inc., to which
the Company adhered, requires the Company to assign
the disputed work to members of the Laborers. How-
ever, as both agreements are very broad in reference to
work jurisdiction of each union, the contracts are not
helpful in determining which group of employees
should be awarded the work.
2. National Joint Board
Contrary to the contentions of the Laborers, we find
that the right of the Laborers to the disputed work has
not been recognized by the Joint Board and the parent
International Unions.
In support of its contention the Laborers submitted
several exhibits which purport to show that the Na-
tional Joint Board has entertained requests by both
labor organizations to resolve the dispute related to the
work herein. The record shows, however, that the
awards in question did not pertain to the specific work
here in dispute, nor did the Carpenters agree to abide
by those awards after they were rendered.
International Association of Machinists, Lodge No 1743, AFL-CIO (J
A. Jones Construction Company), 135 NLRB 1402, 1411
LABORERS , LOCAL 576 513
3. Area, employer, and industry practice
The record shows that the Franki system is unique,
and the practice of the Company, in every area in which
it has operated , has always been to employ carpenter
piledrivers to do work which is connected with the rig
operation in building its foundation footings . Thus, al-
though the work in dispute possibly may be claimed by
either one of the contending unions , the historical prac-
tice shows that only carpenter piledrivers have been
hired as crewmembers by the Company. Accordingly,
we find this factor strongly favors the Company's as-
signment.
4. Skills and efficiency
There is no doubt that members of both unions are
capable of doing the disputed work. However, we can
find no factor related to skill or efficiency which would
support taking the work away from the employees do-
ing the work and assigning the work to employees
represented by the Laborers. The record shows that
there have been no complaints by the Company regard-
ing the work of employees who are members of the
Carpenters, and that they are efficiently performing
their required tasks. This gives rise to the inference that
their continued employment is consistent with the effi-
cient operation of the Company's business and sup-
ports the continued assignment of the work to members
of the Carpenters.
F. Conclusions as to the merits of the dispute
In view of the foregoing , we believe that the work in
dispute should be awarded to employees represented by
the Carpenters . The fact that the Company 's assign-
ment conforms to its own long-established practice,
and that carpenter piledrivers employed by the Com-
pany not only have the requisite skills but are familiar
with all facets of the work in dispute and the attendant
efficiency of operations, lead us to conclude that the
Company's assignment of the work is the proper one.
Therefore , we shall determine the dispute by assigning
the work in question to employees represented by Car-
penters. In making this determination , we are not as-
signing the work to the Carpenters or its members.
G. Scope of the assignment
All parties request that the Board determine the dis-
pute on a nationwide basis . Accordingly , because of the
long history of the same controversy between the two
labor organizations involved , which all parties believe
will continue at future projects , our determination will
cover assignment of the disputed work in any area
where the Company operates and whenever the geo-
graphical jurisdiction of the Carpenters and Laborers
coincide.'
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following determination of the dispute.
1. Employees of Franki Foundation Company em-
ployed as carpenter piledrivers who are represented by
locals of United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, rather than employees repre-
sented by locals of Laborers ' International Union of
North America, AFL-CIO, are entitled to perform the
work on the Franki rig in the construction of uncased
foundation pilings , including pouring , handling, shov-
eling , and dumping of concrete , sand , and gravel, and
the use of shovels and wheelbarrows for clearing debris
and leveling dirt in the vicinity of the machine.
2. Laborers' International Union of North America,
Local Union # 576, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Franki Foundation Company to assign
the above work to laborers represented by it.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Laborers ' International Un-
ion of North America, Local Union # 576, AFL-CIO,
shall notify the Regional Director for Region 9, in
writing, whether it will refrain from forcing or requir-
ing Franki Foundation Company , by means proscribed
by Section 8(b)(4)(D ), to assign the work in dispute to
employees represented by locals of the Laborers rather
than to employees represented by locals of the Carpen-
ters.
S Local Union No 3, International Brotherhood of Electrical Workers,
AFL-CIO (Western Electric Company, Incorporated), 141 NLRB 888, fn
12