Pile Drivers, Local 1966

National Labor Relations Board - Board Decisions

Jul 31, 1970

184 N.L.R.B. 726 (N.L.R.B. 1970)

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pile Drivers , Millwrights & Window Erectors Local
No. 1966 , affiliated with United Brotherhood of.
Carpenters and Joiners of America , AFL-CIO
and Raymond International , Inc. and Laborers In-
ternational Union of North America, Local No.
478, AFLr-CIO. Case 12-CD-143
July 31, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN , AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by Raymond International,
Inc., hereinafter called Raymond or the Employer,
alleging that Pile Drivers, Millwrights & Window
Erectors Local No. 1966, affiliated with United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter called the Pile Drivers or
Carpenters, violated Section 8(b)(4)(D) of the
Act. The charge alleges, in substance, that the Pile
Drivers engaged in, and induced and encouraged
employees of Raymond to engage in, a strike or
work stoppage with an object of forcing and requir-
ing Raymond to assign certain work to its members
rather than to members of Laborers International
Union of North America, Local No. 478,
AFL-CIO, hereinafter called Laborers. Pursuant to
notice a hearing was held before Hearing Officer
Leonard Bass on March 11, 16, 30, and 31, 1970.'
All parties were represented at the hearing and
were afforded full opportunity to be heard, to ex-
amine 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 Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed. The Laborers filed a brief which
we have duly considered.2
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Raymond Interna-
tional , Inc., is a New Jersey corporation licensed to
All dates cited occurred in 1970, unless otherwise specified.
' The Employer filed a motion to reopen the record We find it unneces-
do business in the State of Florida and the 49 other
States. During the past 12-month period it
purchased and received goods and materials
shipped directly to it in Florida from points outside
of Florida valued in excess of $50,000.
Therefore, we find that Raymond is engaged in
interstate commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Pile
Drivers and the Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in all 50 States in the
setting and driving of foundation piling for all types
of structures , including buildings, bridges, and
highway facilities. On or about December 30, 1969,
Raymond, as subcontractor, commenced opera-
tions at the construction site of the First Federal
Bank Building in Miami , Florida . Performance of
this project by Raymond involved its furnishing of
all requisite equipment , labor, supplies, and materi-
als, along with the actual setting of the piles to but-
tress the foundation at the projected building. On
this job the Employer utilized its usual technique of
setting cast-in-place concrete piles contained in
shell casings. Upon hardening, these components
constitute the foundation support piles. The shell
casings used were shipped to Miami by rail or truck
and received by Raymond at a yard away from the
First Federal job location. These metal shell casings
are 16-foot cylinders and are similar in appearance
to corrugated culvert pipe.
On December 30, 1969, and January 6, 1970, W.
Trapani, Local 1966 business agent for the Pile
Drivers, appeared at the jobsite and advised the
Employer's superintendent that the Pile Drivers was
claiming all of the work entailed in handling pile
materials , including the loading, unloading, and
moving of the shell casings . Trapani was informed
that in accord with Raymond's longstanding prac-
tice , the handling of shell casings in and around the
jobsite was to be assigned to laborers. As for the
piledrivers, they were to be responsible for moving
and handling their own equipment components and
accessories and, in general , would only move or dis-
sary to rule upon this motion in view of our determination herein that the
disputed work be assigned to employees represented by the Laborers.
184 NLRB No. 88
PILE DRIVERS , LOCAL 1966 727
tribute pile materials when machinery was used for
that purpose.3 Thus rebuffed, Trapani persisted in
prosecuting the Pile Drivers claim for the disputed
work until on January 8 the piledrivers engaged in a
work stoppage at Trapani's behest under the guise
of walking off the job to attend a safety meeting.'
Additional work stoppages by the -piledrivers oc-
curred on January 9 and 12 in furtherance of their
claim for the disputed work. On January 14 and 16,
more conferences between the Pile Drivers and
Raymond ensued involving Trapani and H. Lewis,
senior business agent of the Carpenters' District
Council, and Raymond's southern construction
manager , J. Newhard, along with certain other em-
ployer officers . During these discussions , the Pile
Drivers representatives also sought to reinforce
their demand for the subject jobsite pile material
handling work by maintaining that Raymond's
agreement with their International Union and a
newly executed agreement between the Piledriving
Contractors Association and the Carpenters' Dis-
trict Council, discussed infra, justified their claim.
On January 19, the final work stoppage by the
piledrivers occurred just prior to the Employer's fil-
ing of the charge herein . On that date, Business
Agent Trapani was present at the jobsite when a
truckload of shell casings was delivered. Trapani
warned Raymond's representatives that if the
laborers essayed unloading the casings, the
piledrivers would quit work. Nevertheless, laborers
commenced the unloading operation; Trapani
thereupon advised the superintendent that the Em-
ployer was violating its contract with the Carpen-
ters and upon the business agent's gesture the
piledrivers walked off the job.
On or about January 20, the Laborers secretary-
treasurer wrote to Raymond referring to the Pile
Drivers efforts to cause the Employer to reassign
the disputed work to its members rather than to
employees represented by the Laborers. The letter
cited, inter alia, Raymond's established 15-year
area practice of assigning this work to its laborers
and asserted that the Laborers was prepared to
press its claim for the retention of the work.
Finally, also on January 20, Raymond filed its
charge alleging violations of Section 8(b)(4)(i) and
( ii)(D) of the Act by the Pile Drivers.
B. The Work in Dispute
The work which gave rise to this proceeding con-
cerns the unloading, distributing, or handling of
foundation pile materials at Raymond's job at the
construction site of the First Federal Bank Building
in Miami, Florida. More specifically, this case re-
lates to the assignment of work functions pertaining
to the jobsite unloading, handling, moving, and
stacking in shell racks of the 16-foot tubular, corru-
gated metal shell casings described supra. These
casings are eventually distributed about the con-
struction site where they come to rest at points 2 to
4 feet from the loci where the concrete piles are to
be emplaced by the piledrivers. Most of the effort
entailed is accomplished manually.
C. The Contention of the Parties
The Employer holds that it had properly assigned
the work in question to the laborers on the bases of
their satisfactory performances of past assignments
as well as its prerogatives under the existing pattern
of relevant collective-bargaining agreements.
Contrariwise, the Pile Drivers contends that the
governing collective-bargaining agreements require
that the disputed work be assigned to Raymond em-
ployees whom it represents. In this connection, the
Respondent urges that a recent bargaining agree-
ment executed late in 1969 between the Piledriving
Contractors Association, the Carpenters' District
Council of Miami, Florida and Vicinity, and Pile
Drivers, Millwrights and Window Erectors Local
No. 1966,1 is binding upon Raymond and requires
that the disputed work be assigned to the
piledrivers. Further, according to the Pile Drivers,
Raymond is compelled by its national agreement
with the United Brotherhood of Carpenters to
recognize the foregoing contract as the local agree-
ment which it is bound to honor.'
The Laborers contends that the evidence shows
that the employees it represents are entitled to the
'Also, consistent with the Employer's work assignment practices,
frequently when test pilings are sunk no laborers may have been hired at
such inchoate stage and , perforce , the pilednvers handle all needed materi-
als
See United Association of Journeymen and Apprentices of the Plumbing
and Prpefttting Industry of the United States and Canada , Plumbers Local
No 219 , AFL-CIO (Price Brothers Company ), 174 NLRB 547, where the
Board found that " an additional object of the 'safety meetings' ( if not the
sole object ) was to obtain for plumbers the hole-drilling work which Price
Brothers had previously assigned to laborers ," and that the jurisdictional
dispute was properly before the Board
From the record it appears that the members of the newly founded
Piledriving Contractors Association did not sign their initial agreement as
an association but separately , as individual members Raymond is not a
signatory
' During the hearing , the Carpenters moved to dismiss the notice of hear-
ing herein and the Hearing Officer properly referred the matter to the
Board for its ruling The Carpenters bases the motion , in part , upon their
contention that the parties had agreed to a voluntary method of resolving
the dispute via its determination by the Joint Board We hereby deny the
motion insofar as it is predicated upon this asserted ground , because there
is no record evidence to sustain the view that the parties ever agreed to
even submit this dispute to the Joint Board As for the Carpenters addi-
tional arguments that the notice of hearing herein should be quashed, we
shall discuss them, infra
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work and that there is no justification warranting
the Employer's reassignment of the work to the Pile
Drivers. It maintains that the satisfactory per-
formance of these job functions by its members is
reflected by the fact that Raymond has pursued the
practice of assigning the subject work to laborers in
this region continuously for some 15 years. Finally,
the Laborers, as does the Employer, contends that
there are no operative contractual provisions which
in any sense buttress the Carpenters claim to the
work in controversy.
D. Applicability of the Statute
Before the Board may proceed to a determina-
tion of dispute pursuant to Section 10(k) of the
Act, it must be convinced that there is a reasonable
cause to believe that Section 8(b)(4)(D) has been
violated.
As shown above, the record contains ample and
uncontradicted evidence that commencing on
December 30, 1969, and at numerous times during
the month of January, the Pile Drivers sought and
demanded that Raymond assign the disputed work
to piledrivers rather than laborers. Further, the Pile
Drivers instigated coercive work stoppages by or-
dering its members off the construction job on
January 8, 9, 12, and 19, while prosecuting its
claim for the disputed work.
Accordingly, we find that there is reasonable
cause to believe that violations of Section
8(b)(4)(D) have occurred, and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.'
E. Merits of the Dispute
As stated in J. A. Jones Construction Co.,' we
shall, pursuant to the Supreme Court's C.B.S. deci-
sion,, determine in each case presented for resolu-
tion under Section 10(k) of the Act the appropriate
assignment of the disputed work only after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors.
1. Certification and bargaining agreements
There is no Board certification governing the
disputed work, so neither the Pile Drivers nor the
'We note the evidence concerning the Pile Drivers proposal to
Raymond that the Union would waive its purported contractual claim to
the work of handling shell casings if Raymond would agree to augment its
crew sizes pursuant to the terms of the new agreement between the Car-
penters and the Pilednvrng Contractors Association However , Raymond
never accepted this proposition and there is no persuasive evidence that
the Pile Drivers ever receded from its work claim See International Union
of Operating Engineers , Local 520, AFL-CIO (Home Building Contractors,
Inc ), 168 NLRB 256
Laborers is favored by this factor. However, both
contending labor organizations are recognized by,
and have collective-bargaining agreements with, the
Employer covering their respective members. The
Laborers current 3-year bargaining agreement was
negotiated in 1969 with the Employer through the
latter's membership in the A.G.C.10 This contract
does not purport specifically to assign the disputed
work to the Laborers but reserves to the Employer
the discretionary right to assign all work performed
to any of its employees.11
As mentioned, supra, the Carpenters contends
that Raymond is bound by virtue of the terms of its
national agreement with the United Brotherhood of
Carpenters and Joiners to recognize as the prevail-
ing local agreement the contract executed late in
1969 between the Carpenters' District Council of
Miami and the newly formed Piledriving Contrac-
tors Association. The territorial area embraced by
this agreement includes Miami in Dade County,
Florida.
If, in fact, Raymond were bound by the proffered
agreement in accord with the Pile Drivers conten-
tion, article I, section 1 thereof would constitute a
factor favoring the award of the disputed work to
that Union because this provision does purport to
enlarge the Pile Drivers' work jurisdiction by speci-
fying that it "shall include the job-site unloading
and handling of all piling material, and pile cas-
ings." On the other hand, Raymond urges that it is
under no obligation to adhere to the Carpenters
agreement with the Piledriving Contractors As-
sociation because that agreement never superseded
Raymond's local contract with the Carpenters
negotiated through the South Florida Chapter of
the A.G.C. Unlike the Piledriving Contractors As-
sociation agreement with the Carpenters, the
A.G.C. contract does not stipulate that the disputed
work lies within the Carpenters jurisdiction. We
agree with the Employer's position vis-a-vis these
conflicting labor agreements for the following
reasons:
First, there is no evidence in the record to show
that Raymond in any manner participated in
negotiations incidental thereto, acquiesced in,
signed, or ratified the Pile Drivers agreement with
the Piledriving Contractors Association. Raymond's
posture at all relevant times herein has been to
repudiate or deny the Pile Drivers assertions and
9 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Co ), 135 NLRB 1402
9 N.L R.B ; v.i Radio and , Television Broadcasting Engineers, Union
[Columbia Broadcasting System ], 364 U.S. 573
10 Agreement between Southeast Florida Laborers' District Council (as
bargaining agent for Laborers ' Local No 478) and the South Florida
Chapter, The Associated General Contractors of America , Inc (A G C )
11 Art. IV, Working Conditions, sec 1.
PILE DRIVERS,
claim that it was bound by this labor agreement. In
sum, Raymond has consistently disavowed the ap-
plicability of the new agreement to its operations.
Consequently, this circumstance is prejudicial to
the Pile Drivers claim.12
Second, the Pile Drivers sought to show that
based on bargaining history, the new Piledriving
Contractors Association agreement was a supple-
ment or extension of the 1969 bargaining between
the Carpenters and A.G.C. in Dade County. There
is some record evidence that certain special or sup-
plemental provisions to the master contract
between A.G.C. and the Carpenters were adopted
by the parties in 1963 and 1966 resulting from such
adjunct negotiations. These special treatment
clauses as they pertained to piledrivers essentially
regulated predetermined wage rates under Govern-
ment contracts. However, in attempting to sustain
its contention that the 1969 Piledriving Contractors
Association labor agreement with the Carpenters
binds all local A.G.C. members, the Pile Drivers
failed to adduce convincing evidence to that end.
For example, the record shows that Pile Drivers of-
ficials did not, and they made no effort to, commu-
nicate with the executive secretary of the local
chapter of the A.G.C. before, during, or after the
negotiation and execution of this new agreement.
Further, as already mentioned, the area piledriving
contractors who actually signed the agreement did
so as individual parties and not under the aegis of
the A.G.C. Accordingly, we find on this record that
the bargaining agreement between the Carpenters
and the Piledriving Contractors Association cannot
be held to encompass the terms and conditions of
employment of piledrivers employed by A.G.C.
members such as Raymond who did not execute
that contract.
In view of the foregoing , we find that the ex-
ecuted bargaining agreements between the Em-
ployer, the Pile Drivers, and the Labrers do not ex-
pressly cover the subject work and, thus, do not
assist us in determining the proper assignment of
the shell casing work. 13
2. Company and industry practices
Raymond is the principal user in southern Florida
of cast-in-place concrete piles encased in corru-
gated tubular casings. In fact, this technique is so
"Accord. International Union of Operating Engineers , local 520,
AFL-CIO ( Home Building Contractors), supra
"The Pile Drivers, as stated previously , moved to dismiss or quash the
notice of hearing herein Pile Drivers contended that this matter was not a
10(k) dispute because the Union was only seeking to enforce or apply its
new contract with the Pilednving Contractors Association , particularly
those provisions governing crew sizes We have found that this is not the
LOCAL 1966 729
commonly utilized by Raymond on jobs throughout
the 50 States that these components are known in
the industry as Raymond piles. It is not con-
troverted in the record that, in the Miami area,
Raymond for some 15 years has assigned to
laborers substantially all of the work incidental to
moving or distributing piling shell casings in and
around the jobsite. The record is inconclusive as to
the identity of other area piledriving contractors
and the possible extent of their use of shell casings
in these circumstances. However, because
Raymond is such a significant element in the
piledriving segment of the construction industry, we
find that its long and continuous custom of assig-
ning the disputed work to employees represented
by the Laborers is a factor favoring continuation of
this practice.
3. Relative skills and efficiency of operation
It is apparent from the nature of the work in-
volved that, inasmuch as its performance does not
require the possession of any particular skills or
training , it can be readily performed by either
piledrivers or laborers. It has been mentioned,
supra, that piledrivers do in fact completely handle
the subject materials , especially when setting test
pilings on occasions when laborers may not yet
have been hired for the job. However, the Pile
Drivers makes no claim that its members are more
capable of satisfactorily performing the disputed
work than the members of the Laborers and there
is no evidence in the record to this effect. 14 Accord-
ing to the Employer, its well-established practice of
assigning this work to laborers on projects in the
south Florida area has been totally satisfactory.
From an economic standpoint, it has proved to be
beneficial to the Employer to fully employ a regular
crew of laborers to accomplish shell case handling
along with their other related and necessary work
at the jobsites.
CONCLUSIONS
Having considered all pertinent elements in the
record, we conclude that laborers employed by
Raymond are entitled to perform the work in
dispute. They have proved to be as competent and
skilled in doing the work as members of the Pile
prevailing contract so far as Raymond is concerned, but even if it were, the
Board has held that " the existence of a contract is an argument addressed
to the merits of a jurisdictional dispute and not to its existence "Local 338,
Plumbing and Pipefitting Industry (Valley Service Company), 157 NLRB
290
11 Local 14, Iron Workers (United Buckingham Freight Lines, Inc ), 163 i
NLRB 674.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drivers, are at least as experienced, if not more so,
and have demonstrably performed it to the satisfac-
tion of the Employer who desires to continue this
mode of job assignment on its operations. The
present assignment is thoroughly consistent with
Raymond's past practice in this regard for 15 years.
The efficiency with which such employees may ac-
complish the work of jobsite shell case handling
enables the Employer to utilize fully the services of
a regular crew of laborers. We shall, accordingly,
determine the existing jurisdictional dispute by as-
signing the disputed work to laborers employed by
Raymond rather than to employees represented by
the Pile Drivers.
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
Dispute:
1. Laborers employed by Raymond Interna-
tional, Inc., are entitled to perform the disputed
work of unloading, moving, handling, or distribut-
ing piling shell casings in and around the jobsite.
2. Pile Drivers, Millwrights & Window Erectors
Local No. 1966, affiliated with United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, is
not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require
Raymond International, Inc., to assign any such
disputed work to piledrivers who are represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Pile Drivers, Mill-
wrights & Window Erectors Local No. 1966, af-
filiated with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, shall notify the Re-
gional Director for Region 12, in writing, whether it
will refrain from forcing or requiring the Employer,
by means proscribed in Section 8(b)(4)(D), to as-
sign the work in dispute to employees represented
by that labor organization rather than to laborers
represented by the Laborers.