Laborers, Local No. 383

National Labor Relations Board - Board Decisions

Feb 19, 1976

222 N.L.R.B. 950 (N.L.R.B. 1976)

950 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
Construction, Production & Maintenance Laborers ' I. THE BUSINESS OF THE EMPLOYER
Union, Local No. 383, affiliated with Laborers' In-
ternational Union of North America , AFL-CIO 1
(Floor Covering Specialists , Incorporated) 2 and
Painters Local Union No. 86 of the Allied Brother-
hood of Painters and Allied Trades, AFL-CIO .3
Case 28-CD-167
February 19, 1976
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Painters on September 10, 1975,4
alleging that Laborers had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activities with an object of forcing the Em-
ployer to assign certain work to employees repre-
sented by Laborers, rather than to employees
represented by Painters.
Pursuant to notice, a hearing was held before
Hearing Officer Edward N. Grossman on October 8
and 10. Painters and Laborers appeared at the hear-
ing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to ad-
duce evidence bearing on the issues .5 Thereafter,
Painters and Laborers filed briefs, and on October 28
Laborers filed a motion to reopen the record to ad-
duce additional evidence and for a continuance to
file briefs. The motion was accompanied by a sup-
porting memorandum.
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 rulings of the Hearing
Officer made at the hearing and finds that they are
free of prejudicial error. The rulings are hereby af-
firmed. The Board has considered the briefs, the mo-
tion, and the entire record in this case and hereby
makes the following findings:
1 Herein called Laborers or Respondent
2 Herein called Employer or Specialists
3 Herein called Painters or Charging Party.
A All events herein occurred in 1975 except as otherwise stated.
5 Although served with the notice of hearing and afforded the opportunity
to be present and to be represented by counsel, the Employer, Ramada
Development Company (herein called Ramada), Chanen Construction
Company (herein called Chanen), and the Contract Floor Covering Associ-
ation of Arizona (herein called Association) did not enter an appearance.
The parties stipulated that the-Employer is an Ari-
zona corporation with its principal office and place
of business in Phoenix, Arizona, where it is engaged
in the wholesale and retail sale and installation of
floor covering products. In the past 12-month repre-
sentative period, the Employer, in the course and
conduct of such business, entered into a contract to
furnish services and related goods and materials val-
ued in excess of $100,000 to Ramada.
The parties also stipulated that Ramada is a gener-
al contractor and supplier in the building and con-
struction industry which, during the past 12-month
representative period, purchased goods and material
valued in excess of $50,000 from sources outside the
State of Arizona which were delivered to its place of
business in Phoenix, Arizona. The parties further sti-
pulated that Hyatt-Regency Phoenix Hotel Compa-
ny (herein called Hyatt-Regency) has been a party to
contracts with various contractors for the construc-
tion of a hotel, to be known as the Hyatt-Regency
Hotel in Phoenix, Arizona, at a cost in excess of $22
million. In connection with this project, Hyatt-Re-
gency entered into a contract with Ramada, wherein
Ramada agreed to provide and install certain fur-
nishings, carpeting, fixtures, and equipment at the
above-named hotel. The latter, in turn, entered into a
contract with the Employer, valued at approximately
$106,000, wherein the Employer agreed to provide
services relating to the installation of carpets and
padding.
Based on the above-stipulated facts and the record
as a whole we find that the Employer, Ramada, and
Hyatt-Regency are 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 juris-
diction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Laborers
and Painters are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of unloading and dis-
tributing carpets and carpet padding at the Hyatt-
Regency Hotel construction site located at 123 North
First Street , Phoenix, Arizona.
222 NLRB No. 153
LABORERS , LOCAL NO. 383 951
B. Background and Facts of the Dispute
The Employer, as a member of Carpet Contractors
Association, is party to a collective-bargaining agree-
ment with Painters, effective January 1, 1974,
through May 31, 1976. Article I of this contract pro-
vides as follows:
This agreement shall apply to and cover all em-
ployees of the employers employed to perform
work within the craft jurisdiction of the Union
including that generally and specifically de-
scribed herein, wherever such work is performed
in the territorial jurisdiction of Painters Local
86, as such territorial jurisdiction is determined
from time to time by the Brotherhood of Paint-
ers and Allied Trades.
On August 7, the Employer was awarded a con-
tract by Ramada to provide services in connection
with the installation of carpeting and carpet padding
at the Hyatt-Regency construction site. Under this
contract, carpeting of various grades and colors and
padding was delivered to the Employer's warehouse
where it was precut for particular areas and rooms
according to color and grade specified, and tagged
for delivery to specific rooms. The carpeting (and
padding) was transported by the Employer to the
jobsite, where it was unloaded and delivered to the
particular room or area designated for installation by
the Employer's installers.
Because of the size of the Hyatt-Regency job, the
Employer found it necessary to supplement its regu-
lar work farce by hiring two extra employees as "per-
mit men" or "preapprentices." These employees had
previously worked for the Employer and, upon re-
ceiving their "work permits" from Painters, com-
menced work in connection with the Ramada con-
tract. In addition to being assigned the specific work
in dispute herein, the permit men also devoted the
greater part of their working time in the Employer's
warehouse, precutting and color coding the carpeting
and delivering it to the jobsite.
The Employer learned of the Laborers claim to the
disputed work on September 5, the date of the first
delivery, when, the Employer's permit men tele-
phoned Niels Sommer, one of the Employer's own-
ers, and told him that the Laborers, through Job
Steward Frank Canez, claimed the work and refused
to allow them (the permit men) to unload the truck.
Sommer thereupon arranged for a meeting which
was held at the jobsite on September 9. Present at the
meeting were Sommer and Everett Bach, the
Employer's president. Representing Laborers were
William Soltero, Sr., business manager; William
Soltero, Jr., assistant business manager and vice pres-
ident; and Job Steward Canez. Representing Painters
was John Kleiner, business manager and financial
secretary. Also present were representatives of Chan-
en, Ramada, and Hyatt-Regency.
It is uncontested that in the course of this meeting
representatives of Laborers and Painters claimed the
right to perform the disputed work. Kleiner addition-
ally testified that either Soltero Sr. or Soltero Jr. said
that "there'd be a work stoppage or there'd be a pick-
et line on the job if the assignment didn't go their
way." Soltero Jr. denied making such a threat. Fol-
lowing some further discussion as to which group of
employees was entitled to the work, Ramada's repre-
sentative requested that Sommer make his assign-
ment of the work in writing, with copies to all parties.
Accordingly, by letter dated September 9, the Em-
ployer formally notified Ramada, Chanen, and
Painters that
we hereby assign the carrying of carpet, pad and
the distribution of same on the above mentioned
[Hyatt-Regency] job to floor layers members of
Local 86.
A copy of this letter was sent to Laborers by regis-
tered mail on September 10.
_On the afternoon of September 9, the Employer
attempted to make another delivery-at the jobsite. At
Sommer's request, Painters representative, Kleiner,
was present when the truck arrived. He testified that
he instructed the preapprentices to unload the truck,
and that when they attempted to do so, Canez ap-
peared and told them,"You are not to do that work."
Kleiner replied that the work had been formally as-
signed to Painters. Canez then left, but returned a
short time later with two laborers employed at the
Chanen site .6 Canez blocked the elevator and, ac-
cording to Kleiner, announced, "There'll be no more
carpet,... I've been instructed by my union that this
is our work, and we're going to perform it. . . . If it's
[the truck is] unloaded, I'll put a picket line on the
job." When the Employer's employees tried once
more to unload the truck, Canez and the laborers
pushed them away. After the police arrived and de-
clined to act in the absence of violence, the Employer
decided to abandon its efforts to complete the deliv-
ery in order to avoid potential violence? On Septem-
ber 10, Painters filed the instant charge. On several
6 The record does not disclose by whom these laborers were employed. It
does show, however, that Chanen employed approximately 25 laborers and
Ramada employed about 8 laborers at the Hyatt-Regency jobsite
7 Klemer admitted that on this occasion he threatened that, if employees
represented by Painters were denied the unloading and delivery work, there
would be "some head knocking." He also admitted that during a confronta-
tion with Canez at thejobsite on or about September 17 he said that if the
work were taken from Painters and reassigned to Laborers he would picket
Chanen. No charges, however, were filed against Painters.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasions thereafter, until a temporary restraining
order was obtained under Section 10(1) of the Act on
September 18, individual laborers, in the presence of
Canez and/or Soltero Jr., physically prevented and
frustrated the Employer's attempts to deliver and dis-
tribute carpeting at the construction job, each time
claiming that the work was Laborers work. Kleiner
testified that, as a result of this activity, the
Employer's installers lost approximately 2 weeks'
work.
Laborers Steward Canez did not testify and, there-
fore, the testimony concerning his role in the events
herein stands uncontradicted. Soltero Jr., however,
denied generally that Laborers interfered with the
Employer's delivery operations and specifically de-
nied making any threats in support of Laborers claim
to the disputed work. Indeed, Soltero Jr. based La-
borers claim to the work upon its Arizona Master
Labor Agreement, which Ramada signed on Septem-
ber 10, after the dispute herein arose, and which, ac-
cording to Soltero Jr., applies to signatories and their
subcontractors.
C. Contentions of the Parties
Laborers contends that the notice of hearing must
be quashed because (1) no jurisdictional dispute ex-
ists inasmuch as the employees to whom the Employ-
er assigned the work are not members of Painters nor
clearly covered by the Employer's contract with
Painters; (2) the record fails to establish the existence
of reasonable cause to believe that Laborers has vio-
lated Section 8(b)(4)(D) of-the Act; and (3) all parties
are bound by a method for the voluntary adjustment
of this dispute. On the merits, Laborers contends that
the work in dispute should be awarded to employees
represented by it.
Painters, on the other hand, contends that (1) a
traditional jurisdictional dispute exists in which La-
borers claimed the right to perform certain work as-
signed by the Employer to employees who are repre-
sented by Painters; (2) reasonable cause exists to
believe that Laborers has violated Section
8(b)(4)(D) of the Act; and (3) no agreed-upon meth-
od exists which is binding on all of the parties for the
voluntary -resolution of this dispute. On the merits,
Painters contends that the work should be awarded
to the Employer's employees represented by it.
(2) the parties are not bound to a method for the
voluntary adjustment of the dispute.
At the outset, we find no merit in Laborers conten-
tion that the facts herein do not present a traditional
jurisdictional dispute. The record clearly reveals that
both Painters and Laborers claimed the disputed
work. Thus, after the Employer assigned the work to
employees represented by Painters, Laborers claimed
the work and asserted, in effect, that the Employer
should have assigned it to employees 'represented by
it. Contrary to Laborers contention, the question of
whether the employees hired to do the disputed work
are members of, or entitled to membership in, Paint-
ers is wholly irrelevant. For Painters has demonstrat-
ed, both before, during, and since the hearing herein,
that it is willing fully and fairly to represent these
employees. Moreover, the existence of a jurisdic-
tional dispute is rendered no less such a dispute if
one of the competing employee groups claiming the
work is unrepresented by any labor organization.
We also reject as lacking in merit Laborers conten-
tion that the record fails to establish reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated. There is testimony that on several occasions,
beginning on or about September 5, Laborers Agents
Canez and Soltero Jr. claimed that the disputed work
belonged to Laborers. There is also testimony that at
the September 9 meeting an agent of Laborers threat-
ened to picket in support of Laborers claim for the
work. In addition, there is testimony that on several
occasions, both before and after the jobsite meeting
of September 9, laborers employed at the jobsite in
the presence of Canez and/or Soltero Jr. physically
prevented the Employer's employees from perform-
ing the disputed work while at the same time claim-
ing that such was Laborers work. Although Soltero
Jr. denied that Laborers threatened to picket the job
or otherwise interfered with the unloading of trucks,
we find, without resolving credibility questions, that
there is sufficient probative evidence in the record as
a whole to establish reasonable cause to believe that
Section 8(b)(4)(D) has been violated. For, in order to
invoke the provisions of Section 10(k) of the Act, we
are not required to find that the unfair labor practice
alleged in the charge has in fact been committed, but
only that reasonable cause exists to so believe. Thus,
we are also not precluded from considering contra-
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
8 Local Union 354, International Brotherhood of Electrical Workers, AFL-
CIO (F. G. Johnson Company, Incorporated), 200 NLRB 599, 600 (1972),
and cases cited at In 4 thereof. Laborers motion to reopen the record herein
for the purpose of adducing evidence that the employees performing the
disputed work are not clearly covered by Painters contract with the Employ-
er and/or are not eligible for membership in Painters is hereby denied. As
stated above, these facts , even if established , would not negate the existence
either of a jurisdictional dispute , or of reasonable cause to believe that Sec
8(b)(4)(D) has been violated
LABORERS, LOCAL NO. 383 953
dicted testimony in finding reasonable cause.'
With respect to whether a voluntary method exists
for resolution of this dispute, we find, for reasons
stated below, that it does. All parties to the instant
dispute are contractually bound to submit their juris-
dictional disputes to the Impartial Jurisdictional Dis-
putes Board (IJDB) for resolution. The Employer's
contract with Painters provides in article VIII as fol-
lows:
CRAFT AGREEMENTS
The Employer shall be bound by and shall make
all work assignments in accordance with any
and all craft agreements to which Painters Local
No. 86 is party or otherwise bound, including
agreements with other local unions and includ-
ing agreements between the Brotherhood of
Painters and Allied Trades and other Interna-
tional Unions. The Employer shall also make as-
signments in accordance with decisions ren-
dered by jurisdictional settlement procedure to
which Painters Local 86 is or becomes party to
or bound by, including but not limited to proce-
dures adopted by the Phoenix Building Trades
Council for the local settlement of jurisdictional
disputes.
Both the Brotherhood of Painters and Allied
Trades of America, AFL-CIO, and Laborers Inter-
national Union of North America, AFL-CIO, with
which the Unions herein are respectively affiliated,
are members of the Building and Construction
Trades Department, AFL-CIO, and as such are
bound by article X of its constitution 10 which pro-
vides:
All jurisdictional disputes between or among the
affiliated National and International Unions
and their affiliated Local Unions and employers
shall be settled and adjusted according to the
present plan established by the Building and
Construction Trades Department, or any other
plan or method of procedure adopted in the fu-
ture by the Department for the settlement of ju-
risdictional disputes. Said present plan or any
other plan adopted in the future shall be recog-
nized as final and binding upon the Department
and upon all affiliated National or International
Unions and their affiliated Local Unions.
9 Sheet Metal Workers International Association, Local Union No. 28,
AFL-CIO (Diesel Construction, a division of Carl A. Morse, Inc.), 194 NLRB
79, 81 (1971)
10 We take official notice of this provision. See, e.g. , Sheet Metal Workers
Local Union No 359, affiliated with Sheet Metal Workers' International Asso-
ciation, AFL-CIO (ELT Piping), 217 NLRB No 164 (1975).
Painters, however, relies on the following language
in the procedural rules and regulations of the IJDB
in support of its contention that the IJDB was not
available to it:
B. JOB DECISIONS
When the Board has received a protest of work
assignment from an International Union or a re-
quest for a job decision from a contractor, it
shall proceed to make a job decision as outlined
below; provided, however, the Board will not
make a job decision in a jurisdictional dispute
while there is a work stoppage caused by the
contractor holding up or shutting down work, or
caused by the trade which is requesting the job
decision.
Painters further relies on article IX of the above
plan:
LOCAL SETTLEMENTS
In any community or locality where a plan for
the settlement of jurisdictional disputes which
has been recognized by the Department now ex-
ists, it shall be used in the first instance to bring
about an agreement or settlement or decision.
However, any such local settlement or agree-
ment or decision shall only apply to the particu-
lar job in question and an appeal therefrom may
be taken directly to the Appeals Board by any of
the parties involved.
Painters asserts that there was a work stoppage in
the instant case until September 18, when an injunc-
tion under Section 10(1) of the Act was obtained.
Such work stoppage, however, even if it existed, was
not alleged to have been caused by either the con-
tractor or by Painters. Neither Painters nor the Em-
ployer was therefore precluded by the quoted IJDB
procedures from seeking a job decision. Painters also
argues that it does not have access to the local dis-
pute-resolving machinery provided in article IX,
above, and that Laborers has such access, but has
refused to use it. Again, we find no merit in this con-
tention. For, even if Painters did not have access to
any local plan for the settlement of jurisdictional dis-
putes, we perceive no impediment to either Painters
or the Employer submitting this dispute directly to
the IJDB for resolution. Accordingly, it is clear, and
we find, that a voluntary method exists which is
binding on the necessary parties herein for the settle-
ment of this dispute.
Having found that all necessary parties have
agreed to be bound by a voluntary method of resolu-
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the dispute through the IJDB, we shall quash ORDER
the notice of hearing issued herein."
" In view of our decision to quash the notice of hearing , we find it unnec- It is hereby ordered that the notice of hearing is-
essary to consider the Laborers postheanng allegations that Painters dis-
criminates against blacks and other ethnic minorities . Accordingly , we here- sued in this proceeding be, and it hereby is, quashed.
by deny Laborers posthearing motion to reopen the record.