Laborers' Union Local 603

National Labor Relations Board - Board Decisions

Apr 18, 1979

241 N.L.R.B. 993 (N.L.R.B. 1979)

LABORERS' INTL. UNION, LOCAL 603
Laborers' International Union of North America, Lo-
cal Union No. 603, AFL-CIO and Duncan Land-
scape Associates, Inc. and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 377. Case 6
CD-659
April 18, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed on November 29, 1978, by Duncan Land-
scape Associates, Inc. (herein referred to as Duncan
or the Employer), alleging that Laborers' Interna-
tional Union of North America, Local Union No.
603, AFL-CIO (herein referred to as the Laborers),
had violated Section 8(b)(4)(D) of the Act. A hearing
was held pursuant to notice at Erie, Pennsylvania, on
January 26, 1979, before Hearing Officer George W.
Loveland 11. The Employer, the Laborers, and Inter-
national Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, Local
Union No. 377 (herein referred to as the Teamsters),
appeared at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the issues.
The Employer and the Laborers filed briefs.
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
I. THE BUSINESS OF THE COMPANY
The parties stipulated, and we find, that the Em-
ployer is an Ohio corporation with its principal office
located in Vienna, Ohio, and is engaged in the busi-
ness of providing landscape contracting services; and
that during the past 12-month period it performed
services valued in excess of $50,000 for employers
who are themselves directly engaged in interstate
commerce. Accordingly, we find that the Employer is
engaged in a business affecting 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 in this proceeding.
II. LABOR ORGANIZATIONS
The parties stipulated, and we find, that the Labor-
ers and the Teamsters are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Duncan's employees have been represented by the
Teamsters for the past 12 years. Duncan is a land-
scaping contractor involved in the planting of grass,
sod, trees, and shrubs, and the installation of irriga-
tion systems and outdoor lighting. It also constructs
patios, flagstone blocks, and wall-stone walls. In addi-
tion to the maintenance of landscape work, it also
provides a planning and design service for landscape
work which is performed by unrepresented staff.
Duncan began a job as landscaping subcontractor
on the construction work being done by the Hardner-
Doyle Company, the general contractor, building the
Erie Veterans' Memorial Stadium in Erie, Pennsylva-
nia, on the last day of October or the first day of
November 1978. The work was begun by Duncan's
employees who are represented by the Teamsters and
is now approximately 90 percent completed.
The work on the instant job involved the construc-
tion of a sod football field, surrounded by an all
weather athletic track. Duncan's president, Skelton,
testified that the work required excavation and em-
bankments due to the grading, which were then
seeded with ground hedge material, and erosion con-
trol measures were taken. In addition, a number of
plants were planted for both aesthetic and people
traffic control purposes.
The dispute herein began when a representative of
Hardner-Doyle called Skelton prior to commence-
ment of the work and said that they had been ap-
proached by the Laborers business agent, Buzzanco,
about the landscaping work; and Buzzanco suggested
that Skelton call him. When Skelton reached Buz-
zanco by telephone, he agreed to his (Buzzanco's) re-
quest to have laborers on the job, but Skelton refused
requests that Duncan sign an agreement with the La-
borers covering the laborers or that his employees
join the Laborers in addition to the Teamsters. Skel-
ton went on to testify that Buzzanco then said that
they (Laborers) would stop the job if Skelton did not
agree.
Buzzanco, while admitting having a conversation
with Skelton concerning the Veteran's job, denied
that he made any threats to stop the job if Duncan
did not accede to the demands.
241 NLRB No. 155
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Work in Dispute
The Teamsters and the Employer stipulated that
the disputed work involves the landscaping work at
the Erie Veterans' Memorial Stadium at 26th and
State Streets in Erie, Pennsylvania, while the Labor-
ers refused to so stipulate based on its contention that
no dispute exists between the Laborers and Duncan.
On the record evidence, we find that the disputed
work is the work involved in the landscaping to be
done on the Erie Veterans' Memorial Stadium at 26th
and State Streets in Erie, Pennsylvania.
C. Contentions of the Parties
Duncan and the Teamsters both contend that there
is a cognizable dispute over the landscaping work on
the Erie Veterans' Memorial Stadium and that con-
siderations of applicable collective-bargaining agree-
ments, the Employer's assignment, economy, effi-
ciency, and the potential loss of jobs favor assignment
of the disputed work to the Employer's employees
represented by the Teamsters.
The Laborers contend essentially that there is no
dispute under Section 10(k) by virtue of the lack of
any threats by it concerning assignment of the dis-
puted work and that accordingly the notice of hearing
should be quashed.
D. Applicability of the Statute
Before the Board may proceed to a determination
of 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 there is no agreed-upon method for the voluntary
adjustment of the dispute.
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 taking
into account the evidence supporting the claims of the
parties and balancing all relevant factors.'
I Based on the above finding, the Laborers motion to quash is hereby
denied.
2 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573 (1961); International Association of Machinists,
Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB
1402, 1410-11 (1962).
We shall set forth below those factors which we
find relevant in determining the dispute herein.
1. Collective-bargaining agreements and
certifications
Although the Teamsters has not been certified by
the Board, it has had successive collective-bargaining
agreements with the Employer since 1967 covering
the employees who perform the landscaping work.
The Laborers has not been certified with respect to
any unit of the Employer's employees, nor does it
now nor has it ever had a collective-bargaining agree-
ment with the Employer. We find, therefore, that this
factor favors an award of the disputed work to em-
ployees represented by the Teamsters.
2. Employer's assignment, economy, and efficiency
The Employer assigned the disputed work to
Teamsters who make up its permanent work force,
and its representative stated that it prefers that as-
signment based on its assessment that its Teamsters
employees need little or no supervision because of
their training and skills as well as their familiarity
with the manner in which the Employer performs
such work.
While there was testimony that laborers had per-
formed some of the tasks involved in the disputed
work, the record is clear that they would need super-
vision as their level of skills and training is below that
of the Employer's employees, and they are not so fa-
miliar with the mode of operation. Accordingly, we
find that this factor favors awarding the disputed
work to employees represented by the Teamsters.
3. Employer and area practice
The Employer's president testified that it has al-
ways been its practice to assign the disputed work to
its employees, which is also common practice in the
industry. The Laborers representative testified that its
members have done landscaping work in the area and
are familiar with the various tasks involved. Accord-
ingly, we find on balance that the area practice is
inconclusive, but that the Employer's past practice
favors awarding the disputed work to the Employer's
employees represented by the Teamsters.
4. Relative skills
The Employer testified that while it employs a
number of employees who have many years of experi-
ence doing bargaining-unit work, it also employs a
number of employees who have received college
training in related fields, some with master's degrees,
and it has a policy of continuing education as a yearly
994
LABORERS' INTL. UNION, LOCAL 603
program. The Laborers testified that its members
have done all aspects of landscaping work but did not
mention any particular education or training that
they received. Accordingly, we find this factor is in-
conclusive.
5. Loss of job opportunities
The Employer contends that if the disputed work is
awarded to employees represented by the Laborers it
would have to lay off some of its regular employees
and provide nonworking supervision. Accordingly,
we find that this factor favors awarding the disputed
work to employees represented by the Teamsters.
Conclusion
Upon consideration of all pertinent factors in the
entire record, in particular the Employer's assign-
ment, collective-bargaining agreements, efficiency,
economy of operations, and the Employer's past
practice, we conclude that the employees of Duncan
who are represented by the Teamsters, and not those
employees represented by the Laborers, are entitled
to the work in question, and we shall determine the
dispute in their favor.
Accordingly, we shall award the disputed work to
those employees who are represented by the Team-
sters but not to that Union or its members.
Scope of Award
The Employer testified that the Laborers have re-
quested that it sign a contract covering its members
with respect to the disputed work whenever such
work is to be performed in Pennsylvania. However,
there is no evidence that the Laborers has on any
other occasions threatened or taken any other pro-
scribed actions in order to gain the work. Accord-
ingly, our determination will be limited to the dis-
puted work as described above.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act, upon the basis
of the foregoing findings and the entire record in this
proceeding, the Board hereby makes the following
Determination of Dispute:
I. Employees of Duncan Landscape Associates,
Inc., Vienna, Ohio, currently represented by Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union No.
377. are entitled to perform the work involved in the
landscaping at Erie Veterans' Memorial Stadium.
2. Laborer's International Union of North Amer-
ica, Local Union No. 603, AFL-CIO, is not entitled,
by means proscribed by Section 8(b)(4)(D) of the Act,
to force or require Duncan Landscape Associates,
Inc., to assign the above work to laborers represented
by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers' Interna-
tional Union of North America, Local Union No.
603, AFL-CIO, shall notify the Regional Director for
Region 6, in writing, whether it will refrain from forc-
ing or requiring Duncan Landscape Associates, Inc.,
by means proscribed by Section 8(bX4)(D) of the Act,
to assign the work in dispute in a manner inconsistent
with the above determination.
995