Local 1005, Northwest Indiana & Vicinity, Carpenters

National Labor Relations Board - Board Decisions

Dec 15, 1980

253 N.L.R.B. 785 (N.L.R.B. 1980)

LOCAL 1005, NORTHWEST INDIANA & VICINITY, CARPENTERS
Local 1005, Northwest Indiana & Vicinity District
Council of Carpenters and J. F. Edwards Con-
struction Company and Laborers International
Union of North America, Local No. 81. Case
13-CD-279
December 15, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by J. F. Edwards Construction
Company, herein called the Employer, alleging
that Local 1005, Northwest Indiana & Vicinity
District Council of Carpenters, herein called Car-
penters, has violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing or requiring the Employer to
assign certain work to its members rather than to
employees represented by Laborers International
Union of North America, Local No. 81, herein
called Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer Margret J. Diaz on September 9,
1980.1 All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine 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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a corporation with a place of business in
Genseco, Illinois, is engaged as a contractor in the
highway sign, traffic, and lighting signal construc-
tion business. The Employer operates in an area
comprising the States of Indiana, Illinois, Iowa,
Nebraska, and Wisconsin and stipulated that during
the past calendar year the Employer had gross rev-
enues which exceeded $1 million and it performed
services directly to customers outside the State of
Illinois which were in excess of $50,000. The par-
ties also stipulated, and we find, that the Employer
I All dates herein are 1980, unless otherwise specifically stated.
253 NLRB No. 103
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and it will effectu-
ate the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Carpen-
ters and Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts of the Dispute
In April 1980, J. F. Edwards Construction Com-
pany entered into a contract with the Indiana State
Highway Commission for the construction of high-
way signs and traffic and lighting signals along In-
terstate Route 65, from the Indiana Tollroad to In-
diana Route 2. Pursuant thereto, the Employer
hired about 15 employees represented by the fol-
lowing labor unions:
1. One individual represented by the Operating
Engineers International Union;
2. About six persons represented by the Interna-
tional Brotherhood of Electrical Workers; and
3. Six to eight persons represented by the Labor-
ers International Union.
The Employer, by letter, assigned the work of
handling sign materials, setting of foundation rein-
forcement, foundation forming, sign post and sign
erection, and sign-related cleanup to employers
represented by the Laborers. Soon thereafter, the
Employer became a signatory to a collective-bar-
gaining agreement with Laborers.
On or about the morning of August 25, one of
the Employer's work crews began excavating a
foundation hole for a cantilevered sign at the Inter-
state 65 worksite. During the preliminary stages of
the excavation, water began seeping into the foun-
dation hole, and it became evident to Duane West,
project foreman, that in order to prevent the walls
of the hole from giving way a wooden box-like
form2 would be needed to support the walls during
the remaining excavation work. Two laborers on
the jobsite built the form from plywood and angle
irons in about 1 hour. At approximately 11:45 a.m.,
as the form was being placed into the partially ex-
cavated hole, Joseph Manley, representative of
Northwest Indiana & Vicinity District Council of
Carpenters, arrived at the jobsite, asked whether
anyone had a Carpenters card, and stated, "[Y]ou
better get a Carpenter on the job here within the
hour" and "[I]f you don't have a Carpenter back
2 Although referred to as a wooden "form," the box-like structure re-
ferred to here was used as a stopgap measure to prevent the earthen
walls of the foundation hole from caving in during excavation
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out here, I'll have the State Police out here after
you."
The laborers and the operating engineers were
then told to go to lunch, and West left the jobsite
to discuss the matter with his supervisor, Francis
Teats. Upon returning to the jobsite, one of the la-
borers handed West the business card of J. C. Stan-
ley, an organizer for the Carpenters Union. West
also discovered that the plywood form had been
torn apart, the water pump had been thrown into a
ditch, the air cleaner in the pump had been filled
with sand, and the extension cord for the pump
had been cut. Another business card bearing the
name of J. C. Stanley was found near the water
pump. At that point, work was suspended for the
day.
During the afternoon of August 25, Michael Lo-
giudice, controller of the Employer, received a
telephone call from James Donnella, secretary-trea-
surer of the Carpenters Union. Donnella informed
Logiudice that the Employer was doing Carpenters
work on the Interstate 65 project, and that the Em-
ployer "better hire a carpenter."
On August 26, at or about 7 a.m., West, Virgil
Goin, representative for the Laborers Union, and
the work crew arrived at the jobsite to complete
the foundation work. At or about 10:15 a.m.,
Manley arrived at the jobsite with a camera and
began taking pictures. Shortly thereafter, six indi-
viduals, apparently under Manley's direction and
control, began picketing the jobsite. One of the
picket signs read "Non Union Rats," and another
read, "J. F. Edwards Construction, Unfair to the
Carpenters." Manley then left the jobsite, and the
pickets remained. Thereafter, Employer's operating
engineer and a concrete truck driver represented
by the Teamsters Union refused to cross the Car-
penters picket line. During the picketing an indi-
vidual, who identified himself as J. C. Stanley,
stated to West, "[W]hy don't you just hire a car-
penter," and also stated that the picketing would
continue until the Employer hired a carpenter. At
or about 2:45 p.m., after being notified once again
that the concrete driver would not cross the picket
line, the Employer dismissed the work crew for the
day and the pickets left the jobsite.
B. The Work in Dispute
The work in dispute involves the erection and
setting of concrete forms,3 anchor bolts, securing
of anchor bolts, templates, and curb angles, as well
s The concrete base of the highway sign is shaped through a process
known as an "earth formed foundation" With this method, concrete is
poured directly into a precisely shaped 9- to 12-foot deep earthen hole
without the use of conventional wooden or steel forms. The record indi-
cates that the Employer uses prefabricated "steel forms" to shape and cap
off the foundation concrete to a 2-1/2-foot depth.
as the construction and placement of wooden box-
like forms for the purpose of shoring up the walls
of foundation holes.
C. The Contentions of the Parties
The Employer contends that the work in dispute
should be assigned to employees represented by the
Laborers Union because it has a collective-bargain-
ing agreement with the Laborers covering the dis-
puted work, and because it has assigned, by letter,
the disputed work to the employees represented by
Laborers. It further contends that such an assign-
ment is supported, inter alia, by considerations of
industry and area practice, Employer's preference,
relative skills, and efficiency and economy of oper-
ations.
Laborers similarly asserts that the work in ques-
tion was properly assigned to its members, and that
such an assignment is consistent with the collec-
tive-bargaining agreement, industry and area prac-
tice, and the relative skills required to perform
such work.
Carpenters, in substance, takes the position that
pursuant to industry and area practice the employ-
ees represented by the Carpenters should have
been assigned the disputed work.
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 dis-
pute.
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) of the Act has oc-
curred 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.4 Accord-
ingly, 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
4 Under the terms of the collective-bargaining agreement entered into
by the Employer and the Laborers, it was provided that all jurisdictional
disputes between the Laborers and unions not having an agreement with
the Employer would be resolved by the National Labor Relations Board.
It is undisputed that the Employer and the Carpenters are not signatories
to a collective-bargaining agreement, and, thus, any understanding
reached between the Laborers and the Carpenters with respect to this ju-
risdictional dispute would be ineffectual in binding the Employer.
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LOCAL 1005, NORTHWEST INDIANA & VICINITY, CARPENTERS
giving due consideration to various factors. 5 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.6
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
J. F. Edwards Construction Company is a signa-
tory to a collective-bargaining agreement with La-
borers. That agreement applies, inter alia, to high-
way construction including "construction, modifi-
cation, additions or repairs of roads and streets . . .
and construction incidental thereto." Further, the
contract includes the job title "Sign Installation, in-
cluding supporting structure" under the "WAGE
AND FRINGES" article. The contract also incor-
porates by reference the jurisdictional guidelines
set forth in the 1972 Laborers' International Union
of North America, State of Indiana District Coun-
cil #57 Jurisdictional Guidelines Booklet. 7 It is un-
disputed that the Employer is not a party to a col-
lective-bargaining agreement with Carpenters.
2. Area practice
In support of its contention that established area
practice supports the assignment of the disputed
work to the Laborers, the Employer largely relies
on the testimony of Laborers Union Representative
Jerry W. Lee that other construction companies in
Indiana have consistently assigned work similar to
that which is disputed to laborers. Lee identified
letters from two area sign installation companies as-
signing highway sign installation work, including
supporting structures, to laborers.
The Employer testified that prior to assigning
the disputed work to laborers, it conferred with the
National Electric Contractors Association (NECA)
and with an area contractor with respect to the as-
signment of the work. On the basis of these meet-
ings, the Employer found that employees repre-
sented by Laborers were assigned the disputed
work in competing companies. In support of its as-
signment to employees represented by Laborers,
the Employer also testified that the work assign-
' N.LR.B. v. Radio Television Broadcast Engineers Union. Local
1212 International Brotherhood of Electrical Workers AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 973 (1961).
6 International Association of Machinists Lodge No. 1743, AFL CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
7 The booklet contains detailed descriptions of laborers duties associat-
ed with job classifications at various types of construction projects.
Under "HIGHWAY CONSTRtJCTION, it is provided that laborers are
responsible for performing "work in the excavation, prefabrication, con-
creting . . for ways . . . and all other labor connected therewith"; and
"[Blracing shoring and cribbing ."
ment was based on its personal observation of as-
signment practices at another area company.
Carpenters Representative James Donnella8 testi-
fied that carpenters perform work similar to the
disputed work for at least six Indiana construction
companies, but did not produce any work assign-
ment letters or other direct evidence in support of
this claim. In addition, Carpenters produced a col-
lective-bargaining agreements providing in part
that the agreement covers the "fabrication and
erection of concrete forms and the dismantling of
same.... The setting and dismantling of forms.
. . . The making of all anchor bolts and tie rods
which are to be fabricated on the job. The fabrica-
tion of templates and anchor bolts by hand." In ad-
dition, the agreement provides that, "[T]here shall
be one or more carpenters employed on the main-
tenance of forms, anchor bolts . . . while concrete
is being poured."
Thus, while Laborers and Carpenters have over-
lapping jurisdictional boundaries with respect to
some of the disputed work, the collective-bargain-
ing agreement, assignment letters, and jurisdictional
guidelines booklet presented as evidence at the
hearing clearly demonstrate that on an areawide
basis laborers perform virtually all work of the
type which is in dispute.
The evidence of record establishes to our satis-
faction that the factor of area practice favors an
award of the disputed work to employees repre-
sented by Laborers.
3. Relative skills
The record does not indicate that the actual
work of erecting and setting of concrete forms,
anchor bolts, securing of anchor bolts, templates, as
well as the construction and placement of wooden
shoring-forms requires any special skill or training
not possessed by either laborers or carpenters. Ac-
cordingly, we find that this consideration does not
favor an award to either of the competing Unions.
4. Efficiency and economy of operations
With respect to efficiency, the Employer testified
that with a composite crew of carpenters and la-
borers assigned to the job, crew size, speed, and
coordination would be adversely affected. In sup-
port of this contention, the Employer testified that
since laborers would still be required to perform
8 Donnella is the business manager and secretary-treasurer of North-
west Indiana District Council of the United Brotherhood of Carpenters
and Joiners of America
a The Employer is not a signatory to this agreement, but the agree-
ment is given some weight for purposes of determining area practice
since three separate area contractors associations are signatories and are
bound by its terms
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties not claimed by carpenters, the total size of
the work force would increase while the amount of
work performed would remain the same. Further,
carpenters and laborers would necessarily alternate
in performing their respective duties, creating a
great deal of idle time for both groups.' ° The Em-
ployer also claims with respect to the building of
the wooden shoring-forms that it would be highly
inefficient to assign that work to carpenters. The
Employer stated that such wooden forms are infre-
quently needed, and, after discovery that a form is
necessary, it must be built quickly and promptly
placed into position. The wooden form in dispute
here was built by two laborers in about I hour.
The employment of carpenters to perform duties
which are needed infrequently and which can be
completed in a relatively short time would be pa-
tently inefficient,'' and promote fragmentation of
the Employer's work.
With respect to economy of operations, the Em-
ployer testified that due to the highly competitive
nature of the sign installation industry, increasing
the size of the work crew would preclude it from
submitting competitive job bids. Thus, an unfore-
seeable delay in excavating a foundation hole, ac-
companied with the need to locate a carpenter to
build a wooden form, would greatly increase the
amount of time idle by laborers, and thus increase
the Employer's wage payments without any attend-
ant gain in production. From the foregoing we
conclude that the factors of efficiency and econo-
my tend to favor the employees represented by La-
borers.
Conclusion
Upon the entire record in this proceeding and
after full consideration of all the relevant factors,
we conclude that employees who are represented
by Laborers International Union of North Amer-
ica, Local No. 81, are entitled to perform the work
'O For example, carpenters would be idle while laborers shape the
foundation hole, vibrate the concrete during pouring, and smooth the
concrete; and laborers would be idle while carpenters set the anchor
bolts, level the anchor bolts, and set the steel form.
" The Employer testified that only one such wooden form was
needed on the entire Interstate 65 sign project.
in dispute. We reach this conclusion on the basis of
the established area practice, the collective-bargain-
ing agreement, letter of assignment, the relative
economy and efficiency of operations, and Em-
ployer's preference, but not the factor of relative
skills which in our view does not weigh in favor of
either group of employees. In making this determi-
nation, we are awarding the work in question to
employees who are represented by Laborers Local
81, but not to that Union or its members. The pres-
ent determination is limited to the particular con-
troversy 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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of J. F. Edwards Construction
Company who are represented by Laborers Inter-
national Union of North America, Local No. 81,
are entitled to perform the work of erecting and
setting of concrete forms, anchor bolts, securing
anchor bolts, templates, and curb angles, as well as
the construction and placement of wooden box-like
forms for the purpose of shoring up the walls of
foundation holes at the highway sign construction
project along Interstate 65 from the Indiana Toll-
road to Indiana Route 2.
2. Local 1005, Northwest Indiana & Vicinity
District Council of Carpenters, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force or require J. F. Edwards Construction
Company to assign the disputed work to employees
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 1005, North-
west Indiana & Vicinity District Council of Car-
penters, shall notify the Regional Director for
Region 13, in writing, whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act, to
assign the disputed work in a manner inconsistent
with the above determination.
788