Laborers (Paul H. Schwendener, Inc.)

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 623 (N.L.R.B. 1991)

623
304 NLRB No. 77
LABORERS (PAUL H. SCHWENDENER, INC.)
1 The Engineers did not appear at the hearing nor submit a brief.
2 Stipulations by ‘‘the parties’’ refers to stipulations entered into by
Schwendener, Albin, and the Laborers.
3 All dates refer to 1991.
4 Albin testified that Benefield had made similar demands of him and
Schwendener in January and February while his company was performing
work for Schwendener at a food store construction project. The record does
not indicate whether 8(b)(4)(D) charges were filed against the Engineers with
respect to these incidents.
5 Albin testified that current total hourly wages and benefits for Laborers is
$20.35, compared to $29.45 for Engineers.
6 The Engineers did submit the matter to the joint grievance committee,
which thereafter advised Schwendener by letter that it had met on May 8, but
did not vote on the submitted grievance because its management committee
concluded that the issue was jurisdictional in nature and thus not eligible for
resolution under the grievance procedure.
Construction and General Laborers, District Coun-
cil of Chicago and Vicinity, affiliated with the
Laborers International Union of North Amer-
ica, AFL–CIO and Paul H. Schwendener, Inc.
and Albin Masonary and Local Union No. 150,
International Union of Operating Engineers,
AFL–CIO. Cases 13–CD–440 and 13–CD–441
August 27, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
The charges in this 10(k) proceeding were filed on
April 17 and 22, 1991, by Paul H. Schwendener, Inc.
(Schwendener) and Albin Masonary (Albin or Em-
ployer), respectively, alleging that the Respondent,
Construction and General Laborers, District Council of
Chicago and Vicinity (Laborers), violated Section
8(b)(4)(D) of the Act by engaging in proscribed activ-
ity with an object of forcing each of them to assign
certain work to employees it represents rather than to
employees represented by Local Union No. 150, Inter-
national Union of Operating Engineers, AFL–CIO (En-
gineers).1 The cases were consolidated and a hearing
was held on May 23, 1991, before Hearing Officer
Joan Flynn.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Paul H. Schwendener, Inc., an Illinois corporation, is
engaged in construction as a general contractor with its
principal offices in Westmont, Illinois, where it annu-
ally purchases and receives at its Illinois facility in ex-
cess of $50,000 in goods and services directly from
outside the State of Illinois.
Albin Masonary, an Illinois corporation, is a ma-
sonry contractor with a principal place of business in
Chicago Heights, Illinois. During the past calendar
year, it purchased and received at its Illinois facility
over $500,000 in goods and services from companies
which received those products directly from points out-
side the State of Illinois.
The parties stipulate2 and we find that Schwendener
and Albin are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that the Laborers and Engineers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Schwendener, the general contractor of a nursing
home construction project located on Remington Drive
in Bolingbrook, Illinois, subcontracted the masonry
work on that project to Albin Masonary. Schwendener
is signatory to contracts with the Laborers and the En-
gineers, covering seven or eight counties in the Chi-
cago metropolitan area, through the Mid-America Re-
gional Bargaining Association (MARBA). Albin has a
contract with the Laborers only, through the Contrac-
tor’s Association of Will and Grundy Counties.
On the nursing home job, Albin assigned the work
of operating the Highlander II lull, a forklift truck used
exclusively for masonry work, to its employees who
are represented by the Laborers. Albin President Keith
Albin testified that in late March 1991,3 after 2 or 3
weeks into the job, he was called by Engineers Busi-
ness Representative Gary Benefield who demanded
that Albin recognize and contract for operation of the
forklift truck or the Engineers would picket the job-
site.4 Albin replied that he recognized the Laborers as
the bargaining agent for the forklift. Albin further testi-
fied that in a subsequent conversation Benefield said
that he could supply Albin with a first year apprentice
engineer at about $10 or $12 an hour, which would be
under the going rate of a laborer,5 and also that he
‘‘would not be glued to the [forklift truck] seat.’’
Thereafter, on March 26, Benefield sent Albin a tele-
gram which threatened to picket unless Albin complied
with the area standards for engineers at the nursing
home site.
Likewise, Schwendener Executive Vice President Jo-
seph Chambers testified that Benefield pressed him to
have an engineer operating the forklift for Albin, in
compliance with the subcontractor memorandum agree-
ment between Schwendener and the Engineers, and
thereafter, by letter of March 28, Engineers Vice Presi-
dent James Ness requested a meeting with
Schwendener prior to submitting the alleged violation
to the joint grievance committee under their contract.6
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 It points to Keith Albin’s testimony showing that Schwendener has ceased
to award future projects to Albin.
8 Because the Engineers did not restrict its conduct to filing a grievance
under the signatory clause of its contract with Schwendener but made claims
for the work both to Albin and Schwendener, and backed the claims up with
threats, Chairman Stephens finds this case to be distinguishable from Laborers
Local 731 (Slattery Associates), 298 NLRB 787 (1990), in which he dissented
from the majority’s finding that the mere filing of a grievance under such a
clause constitutes a competing claim for the assigned work.
9 As noted, the Engineers submitted a letter to the Regional Director 1 day
before the instant hearing, stating that it disclaims any interest in having its
members perform as employees of Albin, but reserves its right to pursue its
subcontracting grievance against Schwendener. The Regional Director’s re-
sponse to the letter was to notify the parties that the hearing would be held
as scheduled. We find that this letter is ineffective as a disclaimer because it
disclaims the work only insofar as the Engineers sought to have employees
it represents perform the work as employees of Albin. It does not eschew in-
terest in the work if performed by another employer, including Schwendener.
Indeed, in light of the joint grievance committee’s informing it that the issue
Finally, on April 5, Laborers Secretary-Treasurer Jo-
seph Lombardo Jr. wrote separately to Schwendener
and Albin and threatened to picket their jobsite to pre-
serve the Laborers’ work jurisdiction if the forklift was
reassigned to the Engineers. These letters triggered the
filing of the instant charges against the Laborers.
Counsel for the Engineers wrote a letter on May 21,
which was received in the Regional Office on the
morning before the scheduled hearing. The letter ad-
vises, inter alia, that the Engineers ‘‘disclaims any in-
terest in having its members perform forklift truck
work as employees of Albin Masonry [sic] at the con-
struction site located at Remington Drive, Bolingbrook,
Illinois.’’ It further states that the Engineers specifi-
cally reserves its right to pursue its subcontracting
grievance against Schwendener.
The Regional Director for Region 13 apparently no-
tified the parties that the hearing would proceed as
scheduled. The Engineers did not appear at the hearing
and has not participated further in this proceeding.
B. Work in Dispute
The work in dispute involves the operation of the
mason-tending forklift on the nursing home construc-
tion project on Remington Drive in Bolingbrook, Illi-
nois.
C. Contentions of the Parties
As noted earlier, the Engineers did not participate in
the hearing or submit a brief. The Laborers alone has
filed a brief before the Board, contending that the En-
gineers has successfully applied secondary pressure on
Schwendener to change the way it does business with
subcontractor Albin,7 and that the Engineers’ eleventh
hour statement disclaiming interest in the disputed
work, while simultaneously pursuing its grievance, is
not an unqualified disclaimer. On the merits, the La-
borers asserts that its claim to the work is supported
by Albin’s preference and past practice, collective-bar-
gaining agreement, the economy and efficiency of its
operation, and the area and industry practice of mason
contractors. In addition, the Laborers contends that an
areawide award is warranted because of the long his-
tory of this work dispute and the substantial likelihood
of recurrence throughout the overlapping jurisdictions
of the Laborers and Engineers.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute. Section 8(b)(4)(D)
makes it an unfair labor practice to take coercive ac-
tion with the object to ‘‘for[ce] or requir[e] any em-
ployer to assign particular work to employees in a par-
ticular labor organization or in a particular trade, craft,
or class rather than to employees in another labor orga-
nization or in another trade, craft, or class . . . .’’ In
order to find reasonable cause to believe that Section
8(b)(4)(D) has been violated, ‘‘there must be evidence
that one group of employees has exerted improper
pressure upon the Employer to compel it to assign cer-
tain work to that group of employees rather than to an-
other group which also seeks the work.’’ Auto Workers
(General Motors), 239 NLRB 365, 366 (1978).
At the beginning of this dispute, employees rep-
resented by the Laborers had been assigned to operate
the forklift truck. The Engineers insisted that the work
belongs to employees whom it represents and informed
both Albin and Schwendener that its members would
picket the jobsite for ‘‘area standards’’ or file a formal
grievance against Schwendener for not requiring as-
signment of the work to its members. In response to
the Engineers’ claim, the Laborers sent letters to Albin
and Schwendener which threatened picketing at the
jobsite to preserve its work jurisdiction if the forklift
work was reassigned to the Engineers. There is no evi-
dence that this threat to picket was not genuine. Ac-
cordingly, we find that there were competing claims to
the disputed work between two rival groups,8 and that
there is reasonable cause to believe that the Laborers
used proscribed means to enforce its claim to the dis-
puted work.
Schwendener, Albin, and Laborers have stipulated,
and the letter from the joint grievance committee
shows that there is no agreed method for voluntary res-
olution of the dispute to which all parties, including
the Engineers, are involved.
Based on our findings above, we find reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred, and that there exists no agreed method
of voluntary adjustment of the dispute, within the
meaning of Section 10(k) of the Act. Accordingly, we
find that the dispute is properly before the Board for
determination.9
625LABORERS (PAUL H. SCHWENDENER, INC.)
was not eligible for resolution under the grievance procedure, the Engineers’
reservation of the right to pursue its subcontracting grievance against
Schwendener must be deemed to be a continuing claim for the work with re-
spect to Schwendener and any employer other than Albin that Schwendener
might contract with to perform the work.
10 See Laborers Local 22 (AGC of Massachusetts), 283 NLRB 605, 608
(1987), in which the Board restated the standard for issuing such broad
awards:
[T]here are two prerequisites for a broad, areawide award. First, there
must be evidence that the disputed work has been a continuous source
of controversy in the relevant geographic area and that similar disputes
may recur. Second, there must be evidence demonstrating that the
Continued
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of the disputed work after considering var-
ious factors. NLRB v. Electrical Workers IBEW Local
1212 (Columbia Broadcasting), 364 U.S. 573 (1961).
The Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on common
sense and experience, reached by balancing the factors
involved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements
Albin has a current contract with the Laborers cov-
ering, inter alia, tending materials, ‘‘whether by buck-
et, hod, wheelbarrow, buggy, or any motorized unit
. . . bobcats and uniloaders for cement masons and
concrete contractors, forklifts for brick masons and/or
any other machine which replaces the wheelbarrow or
buggy.’’ Albin, the Employer that controls the assign-
ment of the disputed work, has no collective-bargain-
ing agreement with the Engineers. We therefore find
that this factor favors an award of the disputed work
to employees represented by the Laborers.
2. Company preference and past practice
The Employer prefers to use employees represented
by the Laborers to perform the work in dispute. Keith
Albin testified that his company has exclusively used
employees represented by the Laborers to operate the
lull forklift. Accordingly, we find that employer pref-
erence and past practice favors an award to employees
represented by the Laborers.
3. Area and industry practice
Keith Albin testified that 80 percent of the mason
contractors use laborers to operate forklift trucks for
carrying bricks. Schwendener Executive Vice President
Chambers’ testimony, however, reveals that
Schwendener has customarily had its employees rep-
resented by the Engineers operate the lull forklift on
construction jobs in which it performed masonry work.
No other evidence on this factor was presented by the
parties. We find from the foregoing that the factor of
area and industry practice is inconclusive and does not
favor an award to employees represented by either
union.
4. Relative skills
The record indicates that operation of the lull forklift
requires no license, certification, or particular skill and
relatively little training, and that both groups of em-
ployees are equally capable of performing the disputed
work. We therefore find that this factor does not favor
either group of employees.
5. Economy and efficiency of operations
The Employer testified that efficiency is the chief
reason that laborers run the forklift. In this regard, the
Employer stated that employees represented by the La-
borers are more efficient because they work 8 hours a
day, including times when the forklift is idle, doing
other job tasks such as digging, sweeping, and shovel-
ing. In contrast, employees represented by the Engi-
neers have restrictive work rules that require a full
day’s pay even if the equipment is run for only 2
hours, and that prohibit them from engaging in labor-
ers’ work. Accordingly, we find that the factor of
economy and efficiency of operations favors an award
of the disputed work to employees represented by the
Laborers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion by relying on the factors of the collective-
bargaining agreement, the Employer’s preference and
past practice, and the economy and efficiency of oper-
ations. In making this determination, we are awarding
the work to employees represented by the Laborers,
not to that Union or its members.
Scope of the Award
The Laborers requests, with the concurrence of
Albin and Schwendener, that the Board issue a broad
work award on behalf of the Laborers proscribing co-
ercive claims by the Engineers in a geographical area
equal to the territorial jurisdiction of the two compet-
ing labor organizations. It contends that such a broad
award is necessary to avoid similar jurisdictional dis-
putes.
The Board has customarily declined to grant an
areawide award in cases such as this in which the
charged party represents the employees to whom the
work is awarded and to whom the employer con-
templates continuing to assign the work.10 Accord-
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charged party has a proclivity to engage in unlawful conduct in order to
obtain work similar to the work in dispute. [Emphasis in original, cita-
tions omitted.]
In this case, employees represented by the Laborers had been assigned the
work from the outset, and their conduct was aimed at retaining the work in
the face of the Engineers’ demands.
ingly, in the circumstances of this case we find no
warrant for granting a broad award. Therefore, the
present determination is limited to the particular con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Albin Masonary, represented by Con-
struction and General Laborers, District Council of
Chicago and Vicinity, affiliated with Laborers Inter-
national Union of North America, AFL–CIO, are enti-
tled to operate the lull forklift at the nursing home
construction project on Remington Drive in
Bolingbrook, Illinois.