Los Angeles County District Council Of Carpenters

National Labor Relations Board - Board Decisions

Apr 30, 1990

298 N.L.R.B. 412 (N.L.R.B. 1990)

412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Los Angeles County District Council of Carpenters
and Swinerton & Walberg Co.
International Association of Bridge , Structural &
Ornamental Iron Workers , Local No. 433 and
Swinerton & Walberg Co. Cases 21-CD-568
and 21-CD-569
April 30, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charges, Cases 21-CD-568 and 21-CD-569,
in this Section 10(k) proceeding were filed October
4, 1989,1 by Swinerton & Walberg Co. (Swiner-
ton), alleging that the Respondents, Los Angeles
County District Council of Carpenters (District
Council) and International Association of Bridge,
Structural & Ornamental Iron Workers, Local No.
433 (Local 433), respectively, violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing Swinerton to assign certain work to em-
ployees it represents rather than to employees rep-
resented by the other union. The hearing was held
November 1, 1989, before Hearing Officer Steven
G. Siebert.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
Swinerton, a California corporation, is engaged
in the construction industry as a general contractor
in California, where it annually purchases goods
and products valued in excess of $1 million directly
from suppliers located outside the State of Califor-
nia. The parties stipulate, and we find, that the Em-
ployer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that the Dis-
trict Council and Local 433 are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Swinerton is the general contractor for the con-
struction of a printing plant for the Los Angeles
Times at 2000 East Eighth Street, Los Angeles,
' All subsequent dates refer to 1989 unless specified otherwise.
California. Swinerton is party to contracts with the
District Council and Local 433. In March 1989,
Swinerton subcontracted the construction of a
quiet room in the printing plant to Industrial Noise
Corporation (INC). The contract specifies that
Swinerton shall provide the employees to do the
work and INC shall provide the materials. The em-
ployees are on Swinerton's payroll, but INC reim-
burses Swinerton for the labor costs. Swinerton
hired carpenters, rather than ironworkers, to install
prefabricated acoustical panels on the structural
steel frame of the quiet room because INC request-
ed a crew of carpenters. INC does not have a con-
tract with either union.
The installation of the acoustical panels on the
quiet room walls was scheduled to be done in three
phases. The first two phases also involved installing
the panels on the printing presses themselves.
There is no dispute that installing the panels on the
presses was carpenter's work. The third phase in-
volved only the walls of the quiet room.
On March 17, Swinerton's job superintendent,
Richard Walbourne, advised District Council Busi-
ness Agent Steven Graves that the quiet room
work was being assigned to carpenters. Phase 1 of
the quiet room began in late March or early April
with carpenters doing the disputed work. Around
this time, Local 433 Business Agent Jim Butner dis-
cussed the work assignment with Walbourne.
Butner asserted the work belonged to ironworkers
and threatened to take economic action against
Swinerton if the assignment was not changed.
The Unions' contracts with Swinerton provide
that in the event of a jurisdictional dispute, the
International representatives of both unions shall
meet to settle the issue. If the International repre-
sentatives reach an agreement, the employer is
bound to implement that agreement. If no agree-
ment is reached, the employer continues with its
own work assignment. Accordingly, on April 3,
Walbourne met with the Unions' local representa-
tives, as well as Carpenters International Repre-
sentative Paul Cecil and Iron Workers Internation-
al Representative R. W. Lansford. The outcome of
the April 3 meeting is a subject of dispute among
the parties.
The District Council claims that because Cecil
was unfamiliar with the material being used, Cecil
and Lansford agreed to contact Walbourne with a
final decision after further investigation. Local 433
asserts that Cecil ceded the work to the ironwork-
ers at the April 3 meeting. Walbourne testified that
he left the meeting with the impression that the
work had been given to the ironworkers, but that
the parties would get back to him about the matter.
298 NLRB No. 52
CARPENTERS LOS ANGELES COUNCIL (SWINERTON & WALBERG)
On April 4, District Council Secretary-Treasurer
Douglas McCarron telephoned Walbourne and told
him to disregard Cecil's comments at the April 3
meeting. McCarron advised Walbourne that Cecil
misunderstood the type of material at issue.
McCarron sent a confirming letter on the same
date. Given the District Council's continuing claim
for the work, Swinerton proceeded , around June,
to begin phase 2 using carpenters to perform the
disputed work. Local 433 objected again and an-
other meeting was held on June 6, at which both
unions continued to claim the work.
On June 8, Local 433 sent Swinerton a letter
stating its position that agreement had been
reached at the April 3 meeting and the work con-
tractually belonged to ironworkers. Accordingly,
on June 13, Local 433 filed a grievance alleging
Swinerton breached the contract provision requir-
ing it to reassign the work as agreed to by the
International representatives. A July 13 Board of
Adjustment deadlocked on the grievance issue and
Local 433 sought to proceed to arbitration on the
matter.
While Local 433 was pursuing its grievance,
Swinerton sought to use the "Plan for Settlement
of Jurisdictional Disputes in the Construction In-
dustry" to resolve the situation . However, on
August 31 , an arbitrator ruled that neither the Plan
nor the arbitrator had jurisdiction to decide the dis-
pute because Swinerton was not timely stipulated
to the Plan.
On September 18, Local 433's attorney sent
Swinerton a letter stating that Local 433 was not
making any jurisdictional claims, but was trying to
take a contractual issue (the refusal to implement
the alleged April 3 work assignment agreement) to
arbitration . The letter further states that a failure to
proceed to arbitration would result in the attorney
advising Local 433 that it was free to take job
action.
On October 2, Swinerton met with District
Council representatives to ask their position about
a reassignment of the work to ironworkers for
phase 3, scheduled to begin in late November. The
District Council representatives stated they would
take economic action in the event of a reassign-
ment of the work.
On October 16 and 17, Local 433 picketed the
worksite. The picket signs read "Swinerton & Wal-
berg refuses to comply with grievance and the ar-
bitration procedures."
B. Work in Dispute
The disputed work involves the installation of
prefabricated acoustical panels on the structural
steel frame of the quiet room at the Los Angeles
413
Times printing plant at 2000 East Eighth Street,
Los Angeles, California.
C. Contentions of the Parties
Swinerton contends that both unions have
claimed the work and have either threatened Swin-
erton or engaged in coercive activity in pursuit of
the work claim. Swinerton argues the work should
be awarded to employees represented by the Dis-
trict Council on the basis of employer preference,
the collective -bargaining agreement between Swin-
erton and the District Council, economy and effi-
ciency of operations , relative skills , job impact, and
industry practice.
The District Council argues that the work was
assigned to the carpenters it represents and should
be awarded to them "pursuant to the traditional
elements relied upon by the Board."
Local 433 contends that there are no competing
claims for the work because: (1) its contractual
grievance seeking compensation , not work reas-
signment, is not a claim , and (2) it repeatedly has
disclaimed the work . Local 433 also argues that
there is not reasonable cause to believe Section
8(bx4)(D) of the Act has been violated because: (1)
its picketing in response to Swinerton 's refusal to
arbitrate had a lawful objective, and (2) the Dis-
trict Council 's threats were not genuine.
D. Applicability of the Statute
In a 10(k) proceeding, the Board must determine
whether there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred. In the
instant case, this requires a finding that there is rea-
sonable cause to believe that one or both unions
used proscribed means to enforce its claim and that
there are competing claims to disputed work be-
tween rival groups of employees.
Local 433 contends there are no competing
claims to disputed work between rival employee
groups because its grievance does not constitute a
claim for the work. Thus, Local 433 asserts that its
grievance is premised on (1) the allegation that the
International unions reached an agreement in the
jurisdictional dispute on April 3, and (2) the fact
that Swinerton has refused , as contractually re-
quired , to implement the alleged agreement. We
reject Local 433's contention.
Local 433 essentially claims that, because its
grievance involves the breach of a contractual pro-
vision other than its jurisdictional clause, its griev-
ance does not involve disputed work . However,
the grievance is based on an alleged agreement be-
tween the Unions settling the assignment of the
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work in dispute.2 Local 433 is seeking an arbitra-
tion award of payment in lieu of the work. Never-
theless, Local 433's grievance evidences that Local
433 claims its contract covers the disputed work.
In circumstances such as these, the Board fords that
there is a traditional jurisdictional dispute in which
two unions have contracts and each union claims
its contract covers the same work. See Massachu-
setts Laborers District Council (Daniel O'Connell's
Sons), 288 NLRB 53 (1988). Consequently, we con-
clude there are active competing claims to disputed
work between rival groups of employees.
As noted above, in response to Swinerton's in-
quiry about reassigning the work for phase 3, the
District Council threatened on October 2 to take
economic action against Swinerton. There is no
record evidence supporting Local 433's claim that
the threat was not genuine. The October 2 threat
provides reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred.
Local 433 argues that because its picketing had a
lawful objective (compelling Swinerton to arbitrate
an alleged contractual breach) the picketing could
not violate Section 8(b)(4)(D). However, the pick-
eting was an attempt to coerce Swinerton to arbi-
trate a payment-in-lieu dispute, which we have
found constitutes a claim for work. Accordingly,
the October 16 and 17 picketing also provides rea-
sonable cause to believe that a violation has oc-
curred.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act.3 Accordingly, we find that the
dispute is properly before the Board for determina-
tion, and we deny Local 433's motion to quash the
notice of hearing in this proceeding.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.
2 Swinerton and the District Council do not concede that a definitive
agreement was reached on April 3.
2 No party makes the argument that the "Plan for the Settlement of
Jurisdictional Disputes in the Construction Industry " is a method for vol-
untary adjustment to which all parties would have been bound. As noted
above, the Plan declined to assert jurisdiction over this dispute.
Further, we observe that Local 433 does not assert that the alleged
April 3 agreement constitutes a method for the voluntary adjustment of
the dispute within the meaning of Sec. 10(k).
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
No party claims there are certifications applica-
ble to the work in dispute.
Swinerton has collective-bargaining agreements
with both the District Council and Local 433. The
parties stipulated that the disputed work is covered
by District Council's contract with Swinerton. Al-
though there is no such stipulation regarding Local
433, its contract claims jurisdiction over "hanging
... acoustical elements, sound barriers . . . etc."
Accordingly, both unions have arguable claims to
the work under their contracts with Swinerton.
Therefore, this factor favors an award of the dis-
puted work to neither group of employees.
2. The Employer's preference
Swinerton assigned the installation of the acousti-
cal panels in the Los Angeles Times printing plant
quiet room to employees represented by the Dis-
trict Council. Swinerton has stated its preference
that the work continue to be done by this group of
employees. Accordingly, this factor favors an
award of the disputed work to employees repre-
sented by the District Council.
3. Industry practice
Evidence presented at the hearing shows at least
10 instances within the past few years where car-
penters installed acoustical panels . Local 433 pre-
sented no evidence that ironworkers have per-
formed similar work in the past. Accordingly, this
factor favors an award of the disputed work to em-
ployees represented by the District Council.
4. Economy and efficiency of operation
The installation of the acoustical panels at the
Los Angeles Times quiet room is a three-phase
process. At the time of the hearing in this matter,
phases 1 and 2 had been completed. The hearing
involved the assignment of the work in phase 3.
Because employees represented by the District
Council did the work in phases 1 and 2, they are
familiar with the operating procedures of installing
the panels and could do the phase 3 work more
readily and efficiently than ironworkers unfamiliar
with the work of the first two phases. Therefore,
this factor favors an award of the disputed work to
employees represented by the District Council.
CARPENTERS LOS ANGELES COUNCIL (SWINERTON & WALBERG) 415
5. Relative skills
The record reveals that the work involves at-
taching the acoustical panels to the structural steel
framework with pop rivets . No special education
or skills are required to perform this work. Al-
though carpenters' previous experience favors
awarding them the disputed work for reasons of ef-
ficiency, the record does not suggest that Local
433-represented employees lack the skills for per-
forming the mechanics of the disputed work. Ac-
cordingly, this factor favors an award of the dis-
puted work to neither group of employees.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Dis-
trict Council are entitled to perform the work in
dispute. We reach this conclusion relying on the
factors of employer preference , industry practice,
and economy and efficiency of operations. In
making this determination , we are awarding the
work to employees represented by the District
Council , not to that Union or its members . The de-
termination is limited to the controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Swinerton & Walberg Co. rep-
resented by Los Angeles County District Council
of Carpenters are entitled to perform the installa-
tion of prefabricated acoustical panels on the struc-
tural steel frame of the quiet room at the Los An-
geles Times printing plant at 2000 East Eighth
Street, Los Angeles, California.
2. International Association of Bridge , Structural
& Ornamental Iron Workers , Local No . 433 is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force Swinerton & Walberg Co. to
assign the disputed work to employees represented
by it.
3. Within 10 days from this date , International
Association of Bridge , Structural & Ornamental
Iron Workers , Local No . 433 shall notify the Re-
gional Director for Region 21 in writing whether it
will refrain from forcing the Employer , by means
proscribed by Section 8(b)(4)(D ), to assign the dis-
puted work in a manner inconsistent with this de-
termination.
CHAIRMAN STEPHENS , concurring.
I concur in the result.