Local 32, Laborers

National Labor Relations Board - Board Decisions

Aug 31, 1972

198 N.L.R.B. 1155 (N.L.R.B. 1972)

LOCAL 32, LABORERS 1155
Local 32, Laborers International Union of North
America and Bertel Peterson Company and Local
Union No. 792, United Brotherood of Carpenters
and Joiners of America . Case 38-CD-78
August 31, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Following the filing of charges by Bertel Peterson
Company, the Employer,' alleging a violation of
Section 8(b)(4)(D) of the National Labor Relations
Act, as amended , a hearing, pursuant to Section
10(k) of the Act , was held before Hearing Officer
Stephen S . Shostrom on May 1, 1972. The Employer,
the Laborers , and the Carpenters appeared at the
hearing and were afforded 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
National Labor Relations Board has delegated its
authority 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 affirmed.
Upon the entire record in this case , the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The record shows, and we find , that Bertel
Peterson Company is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Respondent and the Carpenters are labor organiza-
tions within the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer was awarded a subcontract for the
installation of lathing and plaster from the Hagman
Construction Company for the Como of Rockford
Nursing Home work project and was later awarded a
subcontract to install drywall systems at the nursing
home. The Employer assigned to its employees, who
were members of and represented by the Carpenters,
the work of installing gypsum drywall systems. These
employees, who are drywall specialists, do not
normally do any regular carpenter work, but rather
specialize in the installation of drywall material. At
the end of a workday, scrap in the nature of cut-off
pieces of gypsum drywall material has accumulated,
and the Employer's employees doing the installation
scrap the material, load it in the Employer's truck,
and it is then taken to a landfill for dumping. The
scrapping takes from 15 to 30 minutes a day.
In late March 1972, Wiley Bennett, business agent
for Respondent, called Theodore Peterson, president
of the Employer, and told him that the Employer had
to have laborers do all of the scrapping out of
drywall on the Como of Rockford Nursing Home
job. Peterson asked Bennett for some time to
investigate the situation, but Bennett demanded that
laborers be put on the job or the job would be shut
down with pickets. Bennett admitted that he told
Peterson that he would take "other steps" if the
Laborers were not assigned the work. During the first
week in April, Bennett called Peterson again and told
Peterson his job would be shut down if the Laborers
were not put on the job. Bennett claimed that
Peterson was covered by an agreement between the
Northern Illinois Building Contractors Association
and the Laborers. Peterson replied that this situation
was not covered under the agreement and that he
would continue to scrap-out with Carpenter drywall
specialists. Cloyd Bennett, assistant business agent
for the Carpenters, was also told by Bennett that "if
they didn't have laborers there [at the Como job],
why there would be a picket."
The Employer is a member of the Northern Illinois
Building Contractors Association and has designated
that Association to negotiate collective-bargaining
contracts with the Carpenters. The Employer consid-
ers itself bound by the Association's contract with
the Carpenters. Although the Association also had
negotiated a contract with the Laborers, the Employ-
er does not consider itself bound by that contract.
The Employer does not now employ laborers and
had no laborers at the time the dispute arose.
B. The Work in Dispute
The work in dispute involves the cleaning-up of
drywall scrap at the Como of Rockford Nursing
Home construction project. Contrary to the notoce
of hearing herein, there is no dispute regarding the
"distribution" of gypsum drywall or the hauling of
the drywall scrap.
C. The Contentions of the Parties
The Employer contends that it has traditionally
I The parties are herein referred to as the Employer, the Respondent or
Laborers, and the Carpenters
198 NLRB No. 169
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigned the work to its employees represented by the
Carpenters. Although the Employer in the past has
employed laborers, the laborers have not cleaned up
after the carpenter drywall specialists.
The Laborers contends that the contract between
the Association and the Laborers is binding on the
Employer and that the "debris" mentioned in that
contract covers gypsum drywall scraps. The Laborers
claims that an Understanding of Agreement, Han-
dling Materials between the Laborers and Carpenters
International Unions, signed in 1965, between
representatives of the Internationals, is an appropri-
ate agreement to voluntarily settle the dispute
between the two Unions, and that section 15 of that
agreement specifically covers the subject of "debris."
Furthermore as the work in dispute is essentially
unskilled, Laborers claims that employees represent-
ed by it should perform such work.
The Carpenters claims that the Employer's assign-
ment is correct in that it follows the Employer's past
practice and preference and the area practice, is
more efficient, and is in conformity with the contract
between it and the Northern Illinois Contractors
Association to which the Employer is admittedly
bound. The Carpenters would discount the agree-
ments between the International Unions and be-
tween the Laborers and the Association regarding
material handling as they do not specifically cover
gypsum drywall scraps.
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.
The facts show that the Employer assigned the work
to its employees, who are members of or are
represented by the Carpenters. The Laborers de-
manded that the Employer take the work away from
its employees and assign it to its members. When the
Employer refused to comply with this demand, the
Laborers threatened to picket and cause a work
stoppage on the job. The Laborers claims it was
seeking to settle the dispute through procedures of
the International Union pursuant to their Under-
standing of Agreement, Handling Materials, and that
no work stoppage ever actually occurred. Although
no work stoppage occurred, we find that a threat of
one was conveyed to the Employer and the Carpen-
ters who were unaware of any other means the
Laborers may have been pursuing. Accordingly, we
find that there is reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated.
We are not persuaded by the argument of the
Laborers that the agreement between the Interna-
tional Unions of the Laborers and Carpenters
provides a means for the voluntary settlement of the
dispute. An employer on whom unlawful pressure is
exerted to force an assignment of work is a necessary
party to the dispute for the purposes of Section 10(k)
of the Act. N. L.R. B. v. Plasterers Local Union No. 79,
Operative Plasterers' & Cement Masons' International
Assn., AFL-CIO [Southwestern Construction Co.],
404 U.S. 116. The Employer here is obviously not a
party to the agreement between the two International
Unions, and it is doubtful whether the two local
unions involved herein are bound by, or signatory to,
that agreement in any way. Further, even if all
parties were bound by that agreement or understand-
ing, it is ambiguous, at best, in that the "debris"
referred to at section 15 therein can be interpreted as
not referring to gypsum drywall. Accordingly, it is
clear from the foregoing, and we find, that at the
time of the dispute there did not exist an agreed-
upon method for the voluntary adjustment of the
dispute to which all parties were bound, and that
therefore the matter is properly before the Board for
determination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to various relevant factors.
The Board's determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience, reached by balancing those factors
involved in a particular case.2 Some factors the
Board normally considers, such as Board certifica-
tion and arbitration or jurisdictional awards, are not
present here. However, other factors appear which
are relevant in making a determination of the dispute
before us.
1. Past practice and assignment by the
Employer and area practice
The evidence shows that the Employer has always
assigned carpenter drywall specialists to do the
disputed work in the past, and has assigned the
disputed work to its employees represented by the
Carpenters on the Como job. The Employer strongly
favors an award to its employees based on this past
practice and the efficiency and economy of opera-
tions to the Employer. Furthermore, the Carpenters'
evidence shows that other drywall subcontractors in
the area normally and traditionally assign the
cleaning up of gypsum drywall material to their
2 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402
LOCAL 32, LABORERS 1157
drywall specialists, represented by the Carpenters,
who take a relatively small portion of workday time
to scrap excess material.
2. Skills
Laborers claims that the cleaning-up of debris is
traditional work of a laborer since it involves no
special skills. It is clear that scrapping-out of drywall
material is not a job requiring much experience or
skill of either a laborer or a carpenter.
3. Contractual provisions
The Employer is a member of the Northern Illinois
Building Contractors Association which had con-
tracts with both the Carpenters and the Laborers.
The Employer is bound by the Association's contract
with the Carpenters, but contends it is not bound by
any collective-bargaining agreement with the labor-
ers, particularly since it has not employed laborers on
the Como of Rockford Nursing Home job.
4. Efficiency and economy of operations
The carpenters generally receive a higher rate of
pay than laborers, but the assignment of the disputed
work to laborers would be inefficient and costly
because the work only involves 15 to 30 minutes of
work a day. Should the Employer assign the work to
a laborer, the laborer would have no other function
during the rest of the day on the jobsite.
CONCLUSION
Upon the entire record in this proceeding and after
a full consideration of all of the relevant factors, in
particular the Employer's past practice and assign-
ment, the area practice, and the efficiency and
economy of operations, we conclude that the
employees of the Employer who are members of or
are represented by the Carpenters are entitled to the
work in question and we shall determine the dispute
in their favor. In making this determination, we
award the work to the employees of the Employer
who are represented by the Carpenters but not to
that Union or its members.
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
hereby makes the following Determination of Dis-
pute.
1. Employees employed by Bertel Peterson Com-
pany, who are members of or are represented by
Local Union No. 792, United Brotherhood of
Carpenters and Joiners of America, are entitled to
perform the work in dispute which involves the
cleaning up of drywall scrap at the Como of
Rockford Nursing Home job in Rockford, Illinois.
2. Local 32, Laborers International Union of
North America, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
Bertel Peterson Company, Rockford, Illinois, to
assign the above work to its members or to
employees it represents.
3. Within 10 days from the date of the Decision
and Determination of Dispute, Local 32, Laborers
International Union of North America, shall notify
the Officer-in-Charge for Subregion 38, in writing,
whether or not it will refrain from forcing or
requiring Bertel Peterson Company, by means
proscribed by Section 8(b)(4)(D), to assign the work
in dispute in a manner inconsistent with the above
determination.