Laborers' Local Union 334

National Labor Relations Board - Board Decisions

Jun 22, 1978

236 N.L.R.B. 1131 (N.L.R.B. 1978)

LABORERS' LOCAL UNION 334
Local Union No. 334, of the Laborers' International
Union of North America, AFL-CIO ' and Dynamic
Construction Co., Associated General Contractors
of America Detroit Chapter, Inc. and Cadre Securi-
ty Agency, Inc.; Unrepresented Employees of Dy-
namic Construction Co. & Unrepresented Employ-
ees of Cadre Security Agency, Inc. Case 7-CD-344
June 22, 1978
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Co-Charging Parties, Dynamic
Construction Co., herein called Dynamic, and by As-
sociated General Contractors of America Detroit
Chapter, Inc., herein call AGC, alleging that Local
Union No. 334 of the Laborers' International Union
of North America, AFL-CIO, herein called Labor-
ers, had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring Dynamic to assign certain
work to its members rather than to unrepresented
employees of Dynamic and unrepresented employees
of Cadre Security Agency, Inc., herein called Cadre.
Pursuant to notice, a hearing was held before
Hearing Officer Christopher Honeyman on February
10 and 17, 1978. All parties appeared and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues.
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 Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESSES OF THE CHARGING PARTIES
Dynamic is a general contracting firm engaged in
industrial, institutional, and commercial construction
in the area of Detroit, Michigan. It is a member of
AGC. The parties stipulated, and we find, that Dy-
namic during the last calendar year purchased goods
t The name of the Union appears as amended at the hearing.
and services in excess of $50,000 from points outside
the State of Michigan, and had them shipped to
points within the State of Michigan.
The parties stipulated, and we find, that AGC is a
multiemployer association consisting of some 95 reg-
ular and affiliated members of which Dynamic is
one, which are located within the State of Michigan,
and that during the last calendar year the memebers
of AGC purchased goods and services in excess of
$50,000 from points outside the State of Michigan,
and had them shipped to jobsites located within the
State of Michigan.
We find that Dynamic and AGC are engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. and it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. rHE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Local
Union No. 334 of the Laborers' International Union
of North America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II1 THf DISPUTE
A. Background and Facts of the Dispute
The dispute arose in connection with Dynamic's
renovation project at Tiger Stadium in Detroit. To
maintain the necessary temperature in the construc-
tion area, Dynamic built temporary enclosures and
heated them by warm air conveyed from propane
heaters installed outside the enclosures. The heaters
were provided by a subcontractor, which undertook
to provide 24-hour maintenance service and to relo-
cate the heaters at successive enclosures. The heaters
were large, had a capacity of 2 million British ther-
mal units, and required no maintenance other than
that provided by the subcontractor. No employee
was assigned to watch the heaters during regular
working hours when construction employees were on
the project. However, during nonconstruction
hours-from 4:30 p.m. to 7:00 a.m. Monday through
Friday, and on weekends and holidays-a watchman
was required for the heaters under the project's speci-
fications. Dynamic hired two employees specifically
for the watch work and subcontracted with Cadre, a
security service, to furnish the other watchmen re-
quired.
Employees represented by the Laborers were em-
ployed by Dynamic at the Tiger Stadium project un-
der an effective bargaining contract between that or-
ganization and the AGC, representing its members
including Dynamic. These employees performed var-
236 NLRB No. 129
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ious jobs such as carrying materials, taking away de-
bris, and "tending" the carpenters; and they helped
the subcontractor set up the propane heaters.
Shortly after the heaters were installed, the Labor-
ers inquired whether Dynamic intended to use labor-
ers on the "heat watch," and later requested Dynam-
ic to assign the work to the employees it represented.
Dynamic refused, and three meetings were held in an
attempt to resolve the problem. Representatives of
AGC and the Laborers were present at all meetings,
and representatives of Dynamic and the Detroit
Building Trades Council were present at some. Dur-
ing the meetings the Laborers proposed that the dis-
pute be handled through the grievance-arbitration
machinery of its bargaining contract with AGC to
which Dynamic is bound. The AGC took the posi-
tion that the dispute was not arbitrable, but the par-
ties agreed to try to select an arbitrator, with the
AGC preserving its objection to the arbitrability of
the dispute. According to the testimony of the Charg-
ing Parties, at two of the meetings, the Laborers
made threats to strike or picket to obtain the assign-
ment of the watch work.
B. The Work in Dispute
The work in dispute is the watch on propane heat-
ers outside regular construction working hours at
Dynamic's project at Tiger Stadium, Detroit, Michi-
gan.
C. Contentions of the Parties
The Charging Parties contend that the Laborers
violated Section 8(b)(4)(D) of the Act by threatening
to strike or picket to obtain assignment of the disput-
ed work to employees it represented. They further
contend that the Board should make a determination
of the dispute, and that factors of economy, efficien-
cy, loss of jobs, employer preference, and company
and industry practice dictate award of the disputed
work to the unrepresented employees of Dynamic
and Cadre.
The Laborers contends that there is no reasonable
cause to believe that it violated Section 8(b)(4)(D);
that there is no jurisdictional dispute involved within
the meaning of Section 10(k); and that the Board
should not make a determination of the dispute. In
the alternative, it argues that if the Board does make
a determination of the dispute, the collective-bar-
gaining contract and area practice support award of
the work to the employees it represents.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 dispute.
There is evidence in this case that the Laborers
threatened to take economic action in support of its
claim to the disputed work. There is other evidence
denying that the Laborers made such threats.2 In a
10(k) proceeding the Board is not required to resolve
conflicting testimony or to find a violation of Section
8(b)(4)(D) did in fact occur.3 It need only find that
there is reasonable cause to believe that a violation
occurred.
The Laborers contends that the case does not pres-
ent a jurisdictional dispute as contemplated by Sec-
tion 10(k), but only involves a dispute under the bar-
gaining contract and does not involve competing
claims to the watch work. We reject the contention.
That the Laborers bases its claims to the watch work
upon its collective-bargaining contract with AGC
does not detract from the jurisdictional nature of the
dispute.4 Further, the unrepresented employees who
are performing the work are considered claimants to
the work,5 and Section 8(b)(4)(D) encompasses com-
peting claims of a labor organization and a group of
unrepresented employees. 6
The Laborers also contends that arbitration is the
appropriate method for deciding the dispute. How-
ever, the grievance-arbitration machinery of the La-
borers contract with the AGC does not constitute an
agreed-upon method for voluntary adjustment of the
dispute to which all parties are bound. The unrepre-
sented employees performing the disputed work are
2The Charging Parties introduced testimony that the Laborers business
manager. Curtis, stated at meetings on December 15 and 22 that the Labor-
ers would strike or picket, if necessary, to obtain assignment of the disputed
work to the employees it represented. Curtis and another witness for the
Laborers denied that Curtis had stated that the organization would strike or
picket to obtain the work.
See Local Union No. 474, International Brotherhood of Electrical Workers.
AFL CIO (Teleci. Inc ). 198 NLRB 221 (1972): Carpenters Local Union No.
1298 (Tempco Contracting & Supplv. Inc.), 219 NLRB 320 (1975); Local 2.
International Brotherhood of Electrical Workers, AFL-CIO (The Welsbach
Corporation). 218 NLRB 92 (1975).
4See Carpenters Local Union No 1298 (Tempco Contracting & Supplv,
Inm). supra; Local Union 354, International Brotherhood of Electrical Work-
ere. AFL-CIO (F G. Johnson Company, Incorporated), 200 NLRB 599
(1972).
See International Longshoremen's and Warehousemen's Union. Local No
29 fVan (amp Sea Food C onpanv. Dirision of Ralston Purina Compaun). 225
NLRB 624 (1976); Sheet Aetal Workers Local Union No. 54 (The Goodyear
Fire & Rubber Companr and 0 ITD. Corporation). 203 NLRB 74 (1973).
6 See Carpenters Local Union No 1298 (Ternpco (ontractting & Supple,
Inc ). mpra. Local Union 354. IBEW (F G Johnson Company. Incorporatedl),
upera
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LABORERS' LOCAL UNION 334
not bound to the contract, and they are parties to the
dispute.7
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon method for the voluntary adjustment
of the dispute within the meaning of Section 10(k) of
the Act. Accordingly, we find that this dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.8 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing those
factors involved in a particular case.9
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreement
The Laborers contends that its collective-bargain-
ing contract with the AGC covers the work in dis-
pute. The contract does not specifically set out the
work it covers. The Laborers argues, however, that
the scope of the contract work must be considered in
connection with a "Manual of Laborers' Union Ju-
risdictional Claims" which is bound with the con-
tract. The manual claims the work of "tenders" and
describes that work as including "drying of plaster,
concrete, mortar or other aggregate, when done by
salamander heat or any other drying process." The
Laborers also argues that an article of the contract
entitled "Shift Work" shows an intent to include the
work of watchmen under the contract. The article,
which deals with shift hours, shift wage rates, and
overtime, contains the statement: "D. Night Watch-
men.-It is agreed and understood that these shift
provisions do not apply to night watchmen."
We do not view the collective-bargaining contract
as clearly and unambiguously '0 covering the disput-
ed work. The contract does not by language incorpo-
rate the manual; and even if the manual is consid-
ered part of the contract, it does not expressly set
7See Laborers Local 231. a/%w Laborers International Union of h'orih Amer-
icua AFL-CIO (C. Iber & Sons. Inc., 204 NLRB 37 (1973)
N L. R B. v. Radio and Television Broadcast Engineer. I:nioln, I.wal 12 '2.
International Brotherhood of Electrical Workers, 4 1'1 ('10 Columbla Broa d
casting Syvsem]. 364 U.S. 573 (1961)
9 International Association of Machinists. Lodge No 1 74., A Fl. ('10 (J A.
Jones Construction Company). 135 NLRB 1402 (1962)
'1 See International Association of Bridge, Stru tural and Ornamental Iron
Workers, Local 29, AFL-CIO (Fabindustries. Inc.). 199 NLRB 313, 321
(1972). Lithographers and Photoengravers International Union. Local No 24
P (The Beacon Journal Publishing Conipanv). 185 NLRB 464 1970)
forth a claim to watch work or make clear that the
work of "tenders" which it does claim, includes
watch work. Likewise, the contract article referring
to night watchmen does not expressly state that
watchmen are covered by the contract and may sim-
ply mean, as the AGC suggests, that an employer is
not required to pay the contract rates covering labor-
er classifications in the event it chooses to hire an
individual represented by the Laborers as a night
watchman.
Accordingly, the contract is not a significant factor
in determining the dispute.
2. Company and industry practice
The evidence as to company and industry practice
in assigning watch work is conflicting. According to
witnesses presented by the Charging Parties, Dynam-
ic and several other employers engaged in construc-
tion in the Detroit area have not used laborers as
watchmen, and to the extent they have maintained a
fire watch outside of construction working hours,
they have used unrepresented employees or guard
services to perform that work. According to witness-
es presented by the Laborers, employees represented
by that organization have been employed in the De-
troit area to watch heaters on the jobsite when con-
struction crews were not at work."
Thus, company and industry practice as revealed
by the evidence does not favor one competing claim
to the work over the other.
3. Relative skills
Both the unrepresented employees performing the
work and the employees represented by the Laborers
appear qualified to perform the watch work which
requires no specific skills. Employees on watch duty
sit in the heated enclosure, punch a timeclock at reg-
ular intervals, and observe conditions. They do not
handle the heaters in any way. They have been in-
structed. in case a heater should stop functioning, to
telephone the propane service subcontractor or
Dynamic's superintendent: in case of fire, to tele-
phone the fire department; and, in case of some dis-
turbance or vandalism, to telephone the stadium
guards or the city police.
4. Economy and efficiency of operation
Dynamic declares that it is satisfied with the per-
formance of the unrepresented employees who have
I'' The Laborers ailso argues that watch work evolved from the work of
positioning, fueling, and otherwise "tending" heaters on the jobsite. work
traditionall perfoirned hby employees it represents
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been assigned to the watch work. It also maintains
that the use of Cadre to furnish watchmen averts
some scheduling and bookkeeping problems for Dy-
namic.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that unrepresented employees of Dynamic and of
Cadre are entitled to perform the work in dispute
and we shall determine the dispute in their favor. We
reach this conclusion relying on employer preference
and satisfaction with the work of these employees,
and the absence of any other factor, such as the col-
lective-bargaining contract or company or industry
practice, which clearly would support an award of
the work to employees represented by the Laborers.
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 pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Unrepresented employees of Dynamic Con-
struction Co., and of Cadre Security Agency, Inc.,
are entitled to perform the watch of propane heaters
outside regular construction hours at Dynamic's con-
struction project at Tiger Stadium, Detroit, Michi-
gan.
2. Local Union No. 334 of the Laborers' Interna-
tional Union of North America, AFL-CIO, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Dynamic Construction
Co., to assign the disputed work to employees repre-
sented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No. 334
of the Laborers' International Union of North Amer-
ica, AFL-CIO, shall notify the Regional Director for
Region 7, in writing, whether or not it will refrain
from forcing or requiring Dynamic Construction Co.,
by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the disputed work in a manner incon-
sistent with the above determination.
1134