Laborers Local 459

National Labor Relations Board - Board Decisions

Jan 23, 1973

201 N.L.R.B. 386 (N.L.R.B. 1973)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers Local 459, Southwestern Illinois District
Council of the Laborers International Union of
North America, AFL-CIO and Associated General
Contractors Of Illinois and Hoeffken Bros. Inc.
and Daniel L . Hocking . Case 14-CD-436
January 23, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Associated General Contractors
of Illinois on behalf of Hoeffken Bros. Inc., herein
called the Employer, alleging that Laborers Local
459, Southwestern Illinois District Council of Labor-
ers International Union of North America, AFL-
CIO, hereafter, called Laborers, has violated Section
8(b)(4)(D) of the Act. A hearing was held before
Hearing Officer Frank E. Wallemann on October 10,
1972. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, briefs were filed by
the Employer and the Laborers which have been
duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Hoeffken Bros. Inc., an Illinois corporation en-
gaged in the business of constructing highways and
bridges, annually receives goods and materials
valued in excess of $50,000, which goods are shipped
from outside the State of Illinois. At all relevant
times, Hoeffken Bros. Inc. has been a member of the
Southern Illinois Contractors Association, an associ-
ation of employers engaged in the building and
construction industry, which negotiates and adminis-
ters collective-bargaining agreements with various
labor organizations for and on behalf of its members.
The parties 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
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Laborers
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The notice of hearing described the work in dispute
as:
The cleaning, oiling, and stacking of concrete
forms, and the stacking of lumber in Hoeffken
Bros. lnc.s', warehouse located in Belleville,
Illinois.
At the hearing, Laborers took the position that the
dispute also involved "wrecking, stripping, disman-
tling and moving" of all concrete forms. In its brief,
the Employer stated that it had no objection to the
Board including the additionally described work in
its ruling since that work is so closely related to the
disputed work referred to in the notice.
B. Background and Facts of the Dispute
The Employer has had a contractual relationship
with the Laborers for in excess of 20 years. As in past
contracts, the Employer, under the present collective-
bargaining agreement, agrees to recognize the Labor-
ers "as the representative of all building and
common laborers in its employ." By its terms, the
contract provides that the work of "Wrecking,
stripping, dismantling, cleaning, moving and oiling
of all concrete forms" is laborers' work. The contract
also contains a grievance and arbitration clause.
Usually work as described in the contract relating
to concrete forms is performed at a highway or
bridge jobsite. However, the Employer maintains a
warehouse location, or "tin shed," where the con-
crete forms are stored when not in use, and has
assigned work concerning the cleaning, oiling, and
stacking of concrete forms and stacking of lumber at
the warehouse to any employee who was available at
the time.
Since at least 1969, the Employer has employed
students to work around the warehouse and office,
cleaning up, moving, and throwing out discarded
forms, hauling to the dump, greasing bolts, sweeping,
painting, general cleanup, and related duties. During
1972, the Employer had two students and two other
laborers working around the warehouse and office
performing these diverse functions. It was not until
August 1972 that the Laborers became aware that
students and other employees, working under laborers'
201 NLRB No. 54
LABORERS LOCAL 459
scale , were performing work at the warehouse and
specifically work as described in the contract.
About the end of August 1972, Hugo Schewe, the
Laborers business representative , observed the unre-
presented employees working in and around the
warehouse cleaning , oiling , moving , and stacking
concrete forms . Schewe approached the Employer's
dispatcher and warehouse supervisor , Robert Bech-
erer , and told him that he wanted "the kids" out of
the warehouse because they were doing laborers
work . Schewe said that he was "going to shut the
Swansea job down" on September 1 if the boys were
not out of the shed because he had "lots of card men
out of work ." During the next 2 days , Schewe also
told Albert Hoeffken , president of the Employer, and
John Hoeffken , vice president of the Employer, to
"get the kids out" or he would shut down the
Swansea job. In his conversation with John Hoeffken
on September 1, Schewe related that he was not
claiming the cleanup work and that he did not care if
"the kids" cut the grass and swept the floors. The
Swansea job referred to is a paving and bridge
construction project of the Employer located at the
edge of Belleville , Illinois.
There is no showing that any work stoppage has
taken place and, on September 1, the instant charge
was filed . Thereafter , Laborers requested arbitration
of the instant dispute along with demands for
arbitration on other matters . The Employer, in
response to the Laborers request , refused to arbitrate
the matter , noting that the instant charge had been
filed and the Laborers failed to acknowledge the no-
work stoppage provisions of the arbitration clause
when it threatened to shut down the Swansea job.
C. Contentions of the Parties
Laborers asserts that, until Business Agent Schewe
visited the warehouse in late August , it was not aware
that unrepresented employees were working at the
warehouse performing work as described in the
contract . Laborers contends that , under the explicit
terms of its contract with the Employer, the disputed
work is to be performed by employees represented by
it. In this regard , Laborers argues that , although the
warehouse is not mentioned in the contract, if the
parties had intended to exclude warehouse work,
they would have had specific language in the
contract explaining the exclusion . Furthermore, in
applying the contract to this dispute , Laborers claims
that the dispute can be handled by the arbitration
clause in the contract.
The Employer contends that its contract with the
Laborers has never been applied to employees at the
warehouse , and claims that evidence relating to the
history of negotiations , the contract language itself,
and the Employer 's recent pay practices support that
387
contention . In regard to arbitration , the Employer
notes that the unrepresented employees are not
bound by the arbitration procedures of the contract
and there is, therefore , no agreed-upon method for
settling this dispute.
Two unrepresented employees , presently perform-
ing the disputed work , claim they have been doing
the work satisfactorily and feel they are entitled to
continue to do it.
D. Applicability of the Statute
Before the Board may proceed to a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that ( 1) there is reasonable cause to
believe that Section 8 (b)(4)(D) has been violated, and
(2) the parties have not agreed upon a method for the
voluntary adjustment of the dispute.
The record indicates that, on August 30 , Laborers
requested that the Employer assign the disputed
work to employees represented by it, and threatened
to shut down the Swansea job, a highway project of
the Employer , if the Employer did not assign the
work to its members . Following the Employer's
continued assignment of the disputed work to
unrepresented employees , Laborers again twice
threatened to shut down the Swansea job. Accord-
ingly , based on these undenied threats, we find that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated.
In view of the•fact that the unrepresented employ-
ees constitute a "class" within the meaning of Section
8(b)(4)(D), and as they are not bound by the
grievance procedure of the Laborers contract, nor
are they bound to any procedures of voluntary
settlement, there does not exist any agreed-upon
method for the voluntary adjustment of the dispute
to which all parties are bound . Accordingly, the
matter is properly before the Board for determina-
tion under Section 10(k) of the Act.
E. Merits of the Dispute
Certain factors usually considered by the Board in
making jurisdictional awards are not present in this
proceeding. In this regard , the record shows that the
Board has not issued a certification of bargaining
representative nor have there been any jurisdictional
awards by joint boards . Similarly, there has been no
substantial showing of any area practice, or even that
other employers engaged in highway construction
maintain a warehouse or "tin shed." Neither has it
been shown that the disputed work necessitates any
special skills. There are other factors, however, to
which we can look in making a determination.
1. Assignment, custom , and practice
The Employer claims that its present assignment is
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in conformity with its practice since at least 1969.
The record shows that , at least since 1969, the
Employer has employed students and occasionally
other employees working below laborers' scale to do
work at the warehouse. However, the record also
shows that the Employer has assigned employees
who were available to do the disputed work at the
warehouse when the work needed doing , and certain
laborers represented by Laborers testified that they
had done the work in the past and did not receive
less than scale. Accordingly, we find that the
assignment , custom, and practice does not favor
either the laborers or the unrepresented employees
performing the work at present.
2. Efficiency, economy, and effect
The Employer claims that it is more economical
and efficient to have unrepresented employees
perform the disputed work. In this regard, the
Employer contends that there is not enough work for
the unrepresented employees unless their cleanup
work is combined with the disputed work and that
there is a possibility of laying off the unrepresented
employees. It appears, however, that the only
economic advantage to the Employer is that it does
not have to pay the unrepresented employees the
laborers' scale and the record does not support or
substantiate the claim that certain unrepresented
employees may have to be laid off. As either group is
as efficient as the other, we conclude that the record
does not support the Employer' s claims of efficiency
and effect and we attach little significance to the
Employer's claim of economy.
3. Collective-bargaining agreements
Laborers bases its claim on the collective -bargain-
ing agreement with the Employer in which "wreck-
ing, stripping , dismantling, cleaning, oiling and
stacking of concrete forms" is assigned to laborers
represented by it. We read the bargaining agreement
here involved as unequivocally supporting on its face
the claim urged by the Laborers. The only work not
clearly within the contractual claim of Laborers is
the "stacking of lumber." However , stacking of
lumber is so closely related to the work described in
the notice of hearing and the work encompassed in
the contract that it is virtually impossible to separate
it therefrom . Indeed, the Employer's vice president
testified that cleaning and stacking go hand in hand.
The Employer's unrepresented employees have no
bargaining agreement and no contractual claim to
the work . In these circumstances , we find that the
Laborers claim to the work in dispute has clear and
unambiguous support in its agreement with employer
members of the Southern Illinois Contractor Associ-
ation , part of the Associated General Contractors of
Illinois.
On the basis of the entire record , therefore , we shall
determine the existing jurisdictional controversy by
awarding to laborers represented by Laborers Local
459, Southwestern Illinois District Council of the
Laborers International Union of North America,
AFL-CIO, rather than to the Employer's unrepre-
sented employees , the work of "wrecking, stripping,
dismantling , cleaning , oiling and stacking of concrete
forms and stacking of lumber" in Hoeffken Bros.
Inc.'s warehouse located in Belleville , Illinois. The
present determination 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 case,
the National Labor Relations Board makes the
following Determination of Dispute:
Employees employed by Hoeffken Bros . Inc. as
laborers and currently represented by Laborers
Local 459, Southwestern Illinois District Council of
the Laborers International Union of North America,
AFL-CIO, are entitled to perform wrecking, strip-
ping, dismantling, cleaning, oiling, and stacking of
concrete forms and stacking of lumber in Hoeffken
Bros. Inc.'s warehouse located in Belleville, Illinois.