Laborers Local 662 (McCarthy Bros.)

National Labor Relations Board - Board Decisions

Feb 14, 1984

268 N.L.R.B. 926 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
Local Union No. 662, AFL-CIO and McCarthy
Brothers Company. Case 17-CD-300
14 February 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by McCarthy Brothers Company
(McCarthy), alleging that Laborers' International
Union of North America, Local Union No. 662,
AFL-CIO (Laborers) violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activi-
ty with an object of forcing or requiring McCarthy
and Hercules Construction Company (Hercules) to
assign certain work to employees represented by
Laborers rather then to the employees of Barco
Office Equipment Co., Enterprise Wholesale, Inc.,
Famous Barr Commercial Interiors, Exotica, Ltd.,
Interiors Unlimited, Inc., Rainen Business Interiors,
Inc., Samco Business Suppliers, Inc., and Scott
Rice of Kansas City, Inc. (collectively called Em-
ployers).
Pursuant to notice, a hearing was held before
Hearing Officer Roy L. Wimpey on 2 and 3
August 1983 at Jefferson City, Missouri. All parties
who appeared at the hearing were afforded full op-
portunity to be heard, to examine and cross-exam-
ine witnesses, and to adduce evidence bearing on
the issues.' Thereafter, McCarthy and Laborers
filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the rulings made by the
hearing officer at the hearing and finds that they
are free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings.
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that McCar-
thy is a Missouri corporation engaged as a contrac-
tor in the building and construction industry. At all
times material herein it has been engaged as the
general contractor at the Harry S. Truman Office
Building in Jefferson City, Missouri. During the 12
months preceding the hearing, McCarthy pur-
chased and received goods and materials valued in
I Although the Employers were served with notices of hearing, none
of them entered an appearance at the hearing.
268 NLRB No. 129
excess of $50,000 directly from suppliers outside
the State of Missouri. Accordingly, we find that
McCarthy 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
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Labor-
ers is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
At the times material herein, Laborers had a col-
lective-bargaining agreement with McCarthy, the
general contractor on the Harry S. Truman State
Office Building, and employees represented by La-
borers worked for McCarthy at the site. Laborers
had no collective-bargaining agreement with Her-
cules Construction Company (Hercules). Hercules
was acting as project manager for the State of Mis-
souri on the Truman building project. On 7 June
1983, Hercules' manager, Berg, met with represent-
atives of Laborers. During the meeting, Berg told
the Laborers' representatives that the State of Mis-
souri had contracted directly with vendors for the
unloading and placement of furniture and related
cleanup. Berg explained that certificates of substan-
tial completion would be issued for areas of the
building, and that, when they were, the general
contractor's responsibility for those areas would
end. Berg further explained that since the furniture
would go into areas covered by certificates of sub-
stantial completion, neither Hercules nor McCarthy
would have any control over the assignment of the
work. According to Berg, Laborers business repre-
sentative, Moreau, said that the project was still a
construction site, that Laborers claimed the furni-
ture work, and that if employees represented by
Laborers were not assigned the work, there would
be trouble. Moreau testified that he told Berg the
work was Laborers' work, but denied stating that
there would be trouble.
On 11 July 1983 McCarthy's general superin-
tendent, Graft, phoned Moreau and asked him
what was going on with regard to the furniture.
According to Graft, Moreau stated that Laborers
claimed the work, that the vendors would be treat-
ed as nonunion contractors, and that there would
be trouble if they unloaded the furniture into the
building. Moreau testified that he said Laborers
would probably claim the work but denied stating
there would be trouble. Moreau also testified that
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LABORERS LOCAL 662 (MCCARTHY BROS.)
Laborers still claimed the work at the time of the
hearing.
The contracts to supply furniture and to supply
the related work, including delivery, installation,
and related cleanup, were offered for bids by the
State of Missouri. Contracts were awarded to a
number of vendors including the eight Employers
who were named in the amended charge. Managers
from six of the eight Employers testified at the
hearing. Donell, director sales for .Barco, testified
that he and a salesman would do the work.2 The
manager from Scott Rice of Kansas City and the
manager from Enterprise Wholesale, Inc., testified
that Scott Rice and Enterprise had assigned the
disputed work to employees who were represented
by Teamsters Local Union No. 838. The remaining
three Employers' managers testified that the disput-
ed work had been assigned to the respective Em-
ployers' unrepresented employees. A manager from
Meyer Custom Interior testified that Famous Barr,
one of the remaining two Employers, had subcon-
tracted the disputed work to Meyer and that
Meyer had assigned it to its unrepresented employ-
ees. Berg testified that Interiors Unlimited, the
eighth employer, had assigned the disputed work
to its unrepresented employees.
During the hearing, Moreau testified that a La-
borers member employed by Frank Jackson Instal-
lation had unloaded furniture at the jobsite. Moreau
further testified that Frank Jackson Installations
was a subcontractor to Check Office Equipment, a
vendor originally named in the charge but later de-
leted with permission from the hearing officer.
Berg testified that he saw a portion of the Famous
Barr furniture unloaded and placed, and the related
cleanup work done, and that the work was not
done by members of Laborers.
B. The Work in Dispute
The work in dispute is the unloading and place-
ment of office furnishings and related cleanup work
at the Harry S. Truman State Office Building in
Jefferson City, Missouri.
C. Contentions of the Parties
McCarthy contends that there is reasonable
cause to believe Laborers violated Section
8(b)(4)(D) and that there is no agreed-upon method
for the adjustment of the dispute. McCarthy fur-
ther contends that the work in dispute should be
awarded to the Employers' employees on the basis
s To the extent that unloading and installing furniture and related
cleanup is done by an employer's supervisory employees within the
meaning of Sec. 2(11) of the Act, the operation may not be the subject of
a work assignment dispute. See Teamsters Local 170, 240 NLRB 649, 650
fn. 2 (1979), and cases cited therein.
of company and industry practice, flexibility, effi-
ciency, and employer preference.
Laborers contends that the dispute is not proper-
ly before the Board because there are no compet-
ing claims to the work in dispute. Further, Labor-
ers contends that there has been no threat or coer-
cion in violation of Section 8(b)(4XD). Laborers
also contends that if the Board has jurisdiction
over the dispute then the disputed work should be
awarded to the employees represented by Laborers
based on area practice, an interunion agreement,
disclaimer of the work by Teamsters Local Union
No. 833,? and the fact that the work is unskilled.
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.
Initially, we reject Laborers' contention that
there are no competing claims to the work in dis-
pute. As noted above, Berg and the Employers'
managers testified that all the Employers had as-
signed the disputed work to their employees, none
of whom were represented by Laborers. Addition-
ally, Berg testified that the he saw part of the dis-
puted work completed by employees who were not
members of Laborers. The Board has held that
when an employer has assigned disputed work to
employees who are not represented by the union
claiming the work, there are competing claims.
This is so even where the work has not com-
menced 4 and despite the fact that a union has made
no demand on an employer whose employees are
performing the disputed work.5
We also reject Laborers' contention that no rea-
sonable cause exists to believe Section 8(b)(4)D)
has been violated. Both Berg and Graft testified
that Moreau told them, on separate occasions, that
Laborers claimed the disputed work and that, if the
work were done by others, there would be trouble.
Since Moreau denied stating there would be trou-
ble, there is a conflict in testimony. It is well set-
3 We note that Teamsters Local Union No. 833, by its business agent,
Hollandsworth, "disclaimed" the disputed work. The disputed work,
however, was assigned to employees represented by Teamsters Local
Union No. 838 and to unrepresented employees. Since neither the em-
ployees claiming the work nor the employees to whom it was assigned
are represented by Teamsters Local No. 833, the "disclaimer" by that
Union has no effect on this dispute.
Stage Employees IATSE Local 659 (King Broadcasting), 216 NLRB
860, 862 (1975), and Operating Engineers Local 2 (PVO International), 209
NLRB 673, 675 (1974).
s Longshoremen ILWU Locals 8 and 40 (Pon of Portland), 233 NLRB
459, 461 (1977).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tied, however, that a conflict in testimony does not
prevent the Board from proceeeding under Section
10(k) for, in such cases, the Board is required to
find only that there is reasonable cause to believe
that the Act has been violated and need not con-
clusively resolve conflicts in testimony.6 Addition-
ally, as noted above, Graft further testified that
Moreau told him the Employers would be treated
as nonunion contractors. Based on the foregoing
and the particular circumstances present here, we
find reasonable cause exists to believe that a viola-
tion of Section 8(b)(4)(D) has occurred. 7
No party contends, and the record disclosed no
evidence showing, that an agreed-upon method for
the voluntary adjustment of the instant dispute
exists. Accordingly, we find that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
E. Merits of the Dispute
Section 1.0(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to various factors.8
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
common sense and experience reached by balanc-
ing those factors involved in a particular case."
1. Certification and collective-bargaining
agreements
Neither Laborers nor Teamsters Local No. 838
has been certified by the Board as the collective-
bargaining representative for any unit of any of the
Employers' employees. Although Teamsters Local
Union No. 838 represents the employees of two of
the Employers involved herein, there is no evi-
dence that Teamsters Local Union No. 838 has a
collective-bargaining agreement with any Employ-
er. Further, there is no evidence that Laborers has
a collective-bargaining agreement with any of the
Employers. Thus, the factors of certification and of
collective-bargaining agreements are not helpful to
our determination.
2. Employer practice and preference
It is undisputed that the Employers have as-
signed the unloading and installation of furniture
and related cleanup to their respective employees
over the periods they had been in business. It is
s Operating Engineers Local 139 (McWad, Inc.), 262 NLRB 1300, 1302,
fn. 6 (1982).
' See Electrical Workers IBEW Local 134 (International Telephone), 197
NLRB 879, 883 (1972).
s Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364
U.S. 573 (1961).
' Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1042
(1972).
also undisputed that at least some of the Employers
have assigned their employees to perform the tasks
described above at construction sites. In addition,
each Employer prefers to assign the disputed work
to its employees for reasons which generally in-
clude prior satisfactory experience with those em-
ployees and economy. We therefore find that the
factor of employer practice favors the award of the
disputed work to the Employers' employees. We
further find that, although not entitled to control-
ling weight, the factor of employer preference
favors the award of the disputed work to the Em-
ployers' employees.
3. Area practice
The record reveals that both the Employers' em-
ployees and employees represented by Laborers
have unloaded and installed furniture and done re-
lated cleanup on several area construction projects.
Thus, the factor of area practice is inconclusive.
4. Economy and efficiency of operations
The Employers' managers testified that an award
of the disputed work to the Employers' employees
would result in greater efficiency because such em-
ployees are experienced in following the Employ-
ers' procedures, can do the job from beginning to
end, know what to do about shipping damage, and
are subject to greater control. Laborers presented
no evidence that employees represented by it could
do the job from the beginning to end or that such
employees were familiar with the Employers' pro-
cedures. Thus, the factor of economy and efficien-
cy of operations favors an award of the disputed
work to the Employers' employees.
5. Relative skills
Exotica, Ltd.'s general manager testified that the
handling and placement of the live plants supplied
by Exotica, Ltd., required special skill and that Ex-
otica, Ltd.'s employees possessed the necessary
skill. Laborers presented no evidence that employ-
ees represented by it possessed the necessary skill.
With this exception, the record reveals that both
groups of employees possessed the requisite skills
to perform the work in dispute. We therefore find
that the factor of relative skills favors awarding
that portion of the disputed work performed by
Exotica, Ltd., to Exotica, Ltd.'s unrepresented em-
ployees. We further find that the factor of relative
skills does not favor an award of the remainder of
the disputed work to either group of employees.
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LABORERS LOCAL 662 (MCCARTHY BROS.)
6. Interunion agreement
Laborers introduced into evidence an agreement
between Carpenters District Council of Greater St.
Louis and Eastern Missouri Laborers District
Council which allocated furniture unloading and
installing and related cleanup between employees
represented by the two unions. However, since
none of the employees to whom the disputed work
was assigned are represented by either union, the
interunion agreement is not relevant to this dispute.
Conclusion
Upon the record as a whole, and after full con-
sideration of the relevant factors involved, we con-
clude that the various Employers' employees repre-
sented by Teamsters Local Union No. 838 or the
various Employers' unrepresented employees are
entitled to perform the disputed work. We reach
this conclusion based on. the Employers' practice,
the Employers' preference, the factor of economy
and efficiency, and the fact that the Employers'
employees possess the requisite skills to perform
the disputed work; In making this determination, to
the extent we are awarding the work in the dispute
to the Employers' employees represented by Team-
sters Local Union No. 838, we award the disputed
work to such employees but not to that Union or
its members. The present determination is limited
to the particular controversy which gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. The employees of Scott Rice of Kansas City
and of Enterprise Wholesale, represented by Team-
sters Local Union No. 838, and the unrepresented
employees of Barco Office Equipment Company,
Meyer Custom Interior, a subcontractor of Famous
Barr Commercial Interiors, Exotica, Ltd., Interiors
Unlimited, Inc., Rainen Business Interiors, and
Samco Business Supplies, Inc., are entitled to per-
form the unloading and placement of office furnish-
ings and related cleanup work at the Harry S.
Truman State Office Building in Jefferson City,
Missouri.
2. Laborers' International Union of North Amer-
ica, Local Union No. 662, AFL-CIO is not entitled
by means proscribed by Section 8(b)(4)(D) of the
Act to force or require McCarthy Brothers Com-
pany or Hercules Construction Company to assign
the disputed work to employees represented by it.
3. Within 10 days from this date, Laborers Inter-
national Union of North America, Local Union
No. 662, AFL-CIO, shall notify the Regional Di-
rector for Region 17 in writing whether or not it
will refrain from forcing McCarthy Brothers Com-
pany or Hercules Construction Company, by
means proscribed by Section 8(b)(4XD) of the Act,
to assign the disputed work in a manner inconsist-
ent with this determination.
929