Laborers' Local 935

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 467 (N.L.R.B. 1971)

LABORERS' LOCAL 935 467
Laborers' International Union of North America Local
935, AFL-CIO (Interstate Drywall, Inc.) and Build-
ers' Association of Eastern Ohio & Western Penn-
sylvania and Local Union No . 171, United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO. Case 8-CD-209
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 jursisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
June 23, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended,- following a
charge filed by Builders' Association of Eastern Ohio
& Western Pennsylvania in behalf of its member Inter-
state Drywall, Inc., herein called the Employer, alleg-
ing that Laborers' International Union of North
America, Local 935, AFL-CIO, herein called Labor-
ers, had violated Section 8(b)(4)(D) of the Act. A duly
scheduled hearing was held in Youngstown, Ohio,
before Hearing Officer John Vincek on February 25,
1971, at which Local Union No. 171, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
herein called Carpenters, intervened. All parties ap-
peared and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce
evidence bearing on the issues.' Briefs were thereafter
filed by the Employer and Laborers.
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 powers
in connection with this case 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
Interstate Drywall, Inc., is engaged in the installa-
tion of drywall in commercial structures and resi-
dences. During the past 12 months, it received revenues
in excess of $1 million for installation work performed,
80 percent of which was performed in Ohio and 20
percent in Pennsylvania. During the same period it
purchased materials valued in excess of $60,000 from
outside the State of Ohio which were shipped to it at
its Ohio headquarters.
' Laborers withdrew from the hearing prior to its close and expressly
waived the right to present any further evidence or to cross-examine wit-
nesses.
The parties stipulated, and we find, that Laborers
and Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
III THE DISPUTE
A. Background
The Employer is engaged in applying drywall to the
walls of a Ramada Inn Motel in Trumbull County,
Ohio. In the course of these operations, drywall is
delivered to the site by truck and carried to every
fourth or sixth room. The moving of drywall from these
points to the various rooms for application is the work
involved herein.
On November 29, 1967, an award was issued by the
National Joint Board for the Settlement of Disputes in
the Building and Construction Industry. That award
assigned the work of moving drywall from the point of
unloading to the stockpile to the Laborers, and moving
drywall from the stockpile to the point of installation
to the Carpenters at a Warren, Ohio, site. The Em-
ployer thereafter assigned work in accord with the
award. However, in 1968, the Employer changed its
method of operations. It purchased a "cherry picker"
which mechanically unloads drywall and moves it to
the stockpiles. This device is operated by employees
who are members of the International Union of Operat-
ing Engineers.' At that time the Employer, Carpenters,
and Laborers agreed that composite crews composed of
a laborer and a carpenter would be assigned the work
of moving drywall from the stockpiles to point of instal-
lation. This method of assigning this work was followed
at the instant site.
On 'October 28, 1970, two business agents of the
Laborers, Thomas and Patterson, appeared at the site,
checked the cards of the employees on the job, and
discovered composite crews were doing the work. The
Employer's superintendent was informed by Thomas
that the job of moving drywall to the point of installa-
tion was laborers work and he could not use composite
crews. The members of the Laborers stopped work- for
several hours while discussions took place. Thereafter
work resumed with composite crews.
There is testimony that on November 4, 1970, Pat-
terson and Thomas again came to the site while a load
of drywall was being unloaded and parked their cars in
3 Operating Engineers is not a party to this proceeding.
191 NLRB-No. 93
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a manner that unloading could not proceed for
about an hour. There have been no further work stop-
pages and the work has continued with composite
crews.
On February 10, 1971, the Laborers sent a letter to
the Regional Director of Region 8 expressing its intent
to comply with the Joint Board award and disclaiming
all interest in the work of moving drywall. At the hear-
ing herein the Laborers once again disclaimed the work
and took the position there was no dispute. Laborers
also indicated it would consider entering into a settle-
ment agreement regarding the assignment of work on
this job, but no agreement was reached.
B. The Work in Dispute
The work in dispute is the moving of drywall from
the stockpiles to the point of installation at the Ramada
Inn jobsite in Trumbull County, Ohio.
C. Position of the Parties
The Laborers claim there is no dispute for the follow-
ing reasons : ( 1) it does not currently claim the work; (2)
it agrees to be bound by the 1967 Joint Board determin-
ation; (3) an agreed-upon method for settlement exists;
(4) it has expressed a willingness to enter into a settle-
ment agreement of the matter.
It is the Employer 's position that its change in opera-
tions has made the Joint Board award immaterial; there
is no agreed-upon method for settlement ; the dis-
claimer should be disregarded ; and the Employer and
Carpenters have not agreed on any settlement. The
Employer also contends its assignment of the work
should be affirmed because it is the fairest and most
efficient.
D. The Applicability of the Statute
Before the Board may proceed to a determination of
a dispute pursuant to Section 10(k) of the Act , it must
be satisfied there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated.
As it appears that the Laborers has engaged in work
stoppages to enforce its demands for exclusive assign-
ment of the work, we find there is reasonable cause to
believe a violation of the Act occurred and the dispute
is properly before us for determination.
With respect to the disclaimers by the Laborers, the
Board has held and we hold here that such disclaimers
do not alter the nature of the jurisdictional dispute.
Furthermore, Laborers members continue to perform
the work as part of a composite crew and there is
undisputed testimony that Laborers has engaged in
similar conduct at several of the Employer's jobsites in
the same area in the past.
The 1967 Joint Board award assigning all the dis-
puted work of moving drywall from stockpiles to
rooms to Carpenters also awarded moving drywall
from the truck to stockpile to Laborers. However, since
then the Laborers work has been taken over by Operat-
ing Engineers, and the disputed work has been per-
formed by composite crews according to an agreement
of the parties. In view of the different circumstances
prevailing since the award was made, and as the award
was applicable only to the job for which it was granted,
we find that the award is not dispositive of this dispute.
Neither does it appear there is any agreed-upon
method for the settlement of the dispute. The Laborers
offer at the hearing to enter into a settlement agreement
in this case was not accepted by any of the other parties
herein.
Therefore, since the record shows that there is an
existing dispute and that there is no agreement for
voluntary adjustment of the dispute within the meaning
of Section 10(k) of the Act, the Board is not precluded
from making a determination in this proceeding. The
Laborers motion to quash the notice of hearing is ac-
cordingly denied.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to the various relevant factors
involved.'
There is no evidence of a certification or contract
requiring assignment of this work to either labor orga-
nization, nor is there any evidence of any industry prac-
tice.
The Employer performs 80 to 85 percent of the dry-
wall installing in the Trumbull County area. As in-
dicated, the Employer has assigned the disputed work
to composite crews for over 2 years. There is, however,
no evidence on the practice of other employers in the
area.
There is testimony that the point of installation to
which the drywall is moved by the crew is determined
by the size and weight of the drywall and possible
undue weight stress in areas of the building not de-
signed for this purpose and by whether the stack might
interfere with the work of other crafts on the project.
There is no evidence, however, as to who makes this
determination. The moving itself does not require the
exercise of any skill.
The Laborers have with the installation of new
equipment suffered the loss of a work assignment they
previously had. The Employer has agreed to a compos-
ite crew as an accommodation to the labor organiza-
J International Association of Machinists, Lodge 1743, AFL-CIO (J.A.
Jones Construction Co.), 135 NLRB 1402.
LABORERS ' LOCAL 935
tions involved and has assigned the disputed work to
such crews since 1968. Both the Employer and the
Carpenters are willing to continue the practice of using
composite crews. The parties have thus worked out an
accommodation wherein the laborers share the dis-
puted work with carpenters. This accommodation ap-
pears equitable and fair and accords with the past prac-
tice of the Employer, which performs a large part of the
drywall installation in the area.
Upon the record as a whole, and after due considera-
tion of the evidence as to the relevant factors involved,
we believe that the assignment of the work in dispute
to the employees of the Employer to whom it is pres-
ently assigned should not be disturbed. We shall there-
fore determine the dispute before us by awarding the
moving of drywall at the Trumbull County, Ohio,
Ramada Inn jobsite from the stockpile to the point of
installation to a composite crew consisting of equal
numbers of carpenters and laborers. We do not, how-
ever, award the work to Carpenters and Laborers and
their members. This determination is limited to this
controversy only.4
The Employer and Carpenters urge that a broad order issue covering
all other operations of the Employer. However, as the record will not sup-
port an order of such scope, we shall limit our award to the jobsite where
the instant dispute arose . Plasterers Local Union No. 79, Operative Plasterers
and Cement Masons International Association of Houston, Texas (South-
western Construction Company), 167 NLRB 185; Cement Masons' Local
Union No. 524, etc. (The Parker Construction Company), 163 NLRB 609.
DETERMINATION OF DISPUTE
469
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings, the National Labor Relations Board
hereby makes the following Determination of Dispute:
1. Employees of the Employer represented by Labor-
ers' International Union of North America Local 935,
AFL-CIO, and employees represented by Local Union
No. 171, United Brotherhood of Carpenters and Jour-
neymen of America, AFL-CIO, in equal numbers are
entitled to perform the work of moving drywall at the
construction site located at the Ramada Inn, Trumbull
County, Ohio, from the stockpile to the point of instal-
lation.
2. Laborers' International Union of North America
Local 935, AFL-CIO, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require Interstate Drywall, Inc., Youngstown, Ohio, to
assign such work exclusively to individuals represented
by the aforesaid labor organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Laborers' International
Union of North America Local 935, AFL-CIO, shall
notify the Regional Director for Region 8, in writing,
whether or not it will refrain from forcing or requiring
Interstate Drywall, Inc., by means proscribed by Sec-
tion 8(b) (4) (D) to assign the work in dispute in a
manner inconsistent with the above determination.