Southern California Dist. Council

National Labor Relations Board - Board Decisions

Dec 8, 1971

194 N.L.R.B. 471 (N.L.R.B. 1971)

SOUTHERN CALIFORNIA DIST. COUNCIL
Southern California District Council of Laborers and
Laborers International Union of North America,
Local 585 and Ernest W. Hahn, Inc. and Ventura
County District Council of Carpenters and Carpen-
ters Local 2463. Case 31-CD-35
December 8, 197,1
SUPPLEMENTAL DECISION AND
DETERMINATION OF DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 16, 1969, the National Labor Rela-
tions Board issued a Decision and Order' in the
above-entitled proceeding, finding that, by threaten-
ing, coercing, or restraining Ernest W. Hahn, Inc.,
with an object of forcing Hahn and/or Masonry
Builders, Inc., to assign certain disputed work to
employees represented by Respondent Laborers
rather than to employees represented by the Carpen-
ters Union,2 the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of Section 8(b)(4)(ii)(D) of the National
Labor Relations Act, as amended. The Board ordered
that Respondent cease and desist therefrom and take
certain affirmative action to remedy such unfair labor
practices. In so finding, the Board reasoned that all
parties to the jurisdictional dispute had agreed to be
bound by the determination of the National Joint
Board for Settlement of Jurisdictional Disputes,
Building and Construction Industry, herein called the
Joint Board, and therefore the Board accepted the
Joint Board's determination without making an
independent determination pursuant to Section 10(k)
of the Act.
Subsequently, the Board filed an application for
enforcement of its Order with the United States Court
of Appeals for the Ninth Circuit and the Respondent
filed an answer thereto.
On May 24, 1971, the United States Court of
Appeals for the Ninth Circuit entered an Opinion,
concluding that Masonry Builders, Inc., the Employer
controlling assignment of the disputed work, had not
agreed to be bound by the Joint Board's determina-
tion. The court therefore denied enforcement of the
Board's Order, and remanded the case for a hearing
under Section 110(k) of the Act and for further
proceedings consistent with the court's views.3
On August 4, 1971, pursuant to the court's remand,
the Board issued its Order Remanding Proceeding to
1 180 NLRB No. 73.
2 Ventura County District Council of Carpenters and Carpenters Local
2,463, hereinafter called Carpenters.
3 N.L.R.B. v. Southern California District Council of Laborers and
Laborers International Union of North America, Local 585, 443 F.2d 220
194 NLRB No. 78
471
the Regional Director in which it reopened the record
for issuance of a notice of 10(k) hearing. Pursuant to
due notice a hearing was held before Hearing Officer
Robert G. Mayberry on August 24, 1971, at Los
Angeles, California. Southern California District
Council of Laborers and Laborers International
Union of North America, Local 585, hereinafter
called Laborers, and California Conference of Mason
Contractors Associations, Inc., and Masonry Build-
ers, Inc., hereinafter called Masonry,4 appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing upon the issues. State-
ments of positions contained in letters have been filed
by attorneys representing the Laborers and Carpen-
ters.
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
Ernest W. Hahn, Inc. (Hahn), a general contractor,
and its subcontractor Masonry Builders Inc.
(Masonry), are California corporations engaged in the
construction of the Esplanade Mall project in Oxnard,
California. The Employers herein are engaged in
interstate commerce or in operations affecting com-
merce.
II. THE LABOR ORGANIZATIONS INVOLVED
Southern California District Council of Laborers
and Laborers International Union of North America,
Local 585, and Ventura County District Council of
Carpenters and Carpenters Local 2463 are labor
organizations within the meaning of the Act.
M. THE DISPUTE
A. Facts
Ernest W. Hahn, Inc., is the general contractor for
certain construction work at a project known as the
Esplanade Mall in Oxnard, California. Hahn subcon-
tracted certain masonry work to Masonry Builders.
Masonry Builders has a collective-bargaining agree-
(C.A. 9).
4 Although served with notice of hearing , neither Ernest W. Hahn, Inc.,
the Charging Party, nor Ventura County District Council of Carpenters or
Carpenters Local 2463 made an appearance at the hearing.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment with Laborers. Pursuant to this collective-
bargaining agreement, Masonry assigned the scaf-
folding work under its subcontract to laborers. Hahn
is signatory through Associated General Contractors
to an agreement with both the Carpenters and
Laborers.
On two occasions prior to a Joint Board award of
the disputed work to Carpenters, Carpenters made
known its claims to scaffolding work erected to a
height of 14 feet, indicated that attempt to resolve the
dispute with the Laborers had been fruitless, and
indicated its intention to submit the matter to the
Joint Board. A representative of Respondent Local
585 was present on those two occasions when the
Carpenters made known its claim. On February 19,
1969, the Joint Board served notice on Hahn and
Masonry Builders that the dispute had been submit-
ted to it, and on March 7, 1969, the Joint Board
advised all parties that the work in dispute was to be
assigned to the Carpenters. On March 12, before the
award had been complied with, a representative of
Hahn called Felix Espinosa of Respondent Council,
asked him if he were aware of the award, and upon
receiving an affirmative reply also asked Espinoza
what the Laborers would do if Hahn used its
carpenters to perform the disputed work as directed
by the Joint Board. Espinoza replied that he would
remove ally laborers from the job and would file
charges with the National Labor Relations Board for
money due the laborers who were entitled to the work.
B. The Work in Dispute
The work in dispute involves the erection and
dismantling of scaffolding standing 14 feet or higher.
C. The Contention of the Parties
As to the merits of the dispute, the only issue now
before us, Laborers contends that the evidence
abundantly supports the assignment of the work to
employees it represents. Though Carpenters did not
enter an appearance at the hearing, it transmitted its
position by letter to the Board, opposing the assign-
ment of the work to Laborers. The Employer,
Masonry, supported the Laborers claim for the
disputed work.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a 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.
Under settled Board policy, improper pressure by a
5 Hahn, as well as Masonry Builders, employed laborers represented by
Respondent on the jobsite.
union other than the one which has been assigned the
work is not necessarily a prerequisite to the existence
of a 10(k) dispute .6 As it appears from the record that
Laborers threatened to pull its men off the job if the
Employer awarded the scaffolding work to Carpen-
ters, pursuant to Carpenters claim, there is reasonable
cause to believe both that an object of Laborers action
was to force the Employer to continue to assign all of
the disputed work to individuals represented by
Laborers and that a violation of Section 8(b)(4)(D)
has occured. The dispute is therefore properly before
the Board for determination.
E. Merits of the Dispute
There is no claim by either union, nor does the
record indicate, that any special skill or training is
required to erect and dismantle scaffolding over 14
feet high, or that either of the competing groups of
employees is more capable than the other of perform-
ing the disputed work. There is no certification of
bargaining representative that can be said to apply to
any of the employees involved in this dispute. There
are other factors, however, which we find persuasive
in making our determination in this case:
1. Collective-bargaining agreements
The Employer subcontractor, Masonry Builders,
Inc., as a member of Mason Contractors Exchange of
Southern California, has had a series of collective-
bargaining agreements with the Laborers. These
agreements have provided that scaffolding was the
work of laborers. Masonry Builders, Inc., has had no
contractual relations with, and has no employees
represented by, the Carpenters. In addition, contracts
between various employer associations and locals of
the Laborers Union in 12 counties of Southern
California describe the erection and dismantling of
scaffolds 14 feet or higher as being within the
jurisdiction of the Laborers.
2. Company and industry practice
The Employer (Masonry Builders, Inc.) has consist-
ently assigned the disputed work to employees
represented by Laborers. As indicated, Masonry
Builders has never assigned this work to Carpenters.
Much testimony was adduced to show that in the
Southern California area, as well as elsewhere, it is
long-established industry practice for laborers to
perform this work.
6 National Press, Incorporated, 186 NLRB No. 26, and Pulitzer
Publishing Company, 187 NLRB No. 35.
SOUTHERN CALIFORNIA DIST. COUNCIL
3. The efficient operation of the Employer's
business
The laborer's duties encompass all work necessary
to assist the bricklayers, such as the mixing of mortar,
carrying brick and block to the masons, cleaning up
excess brick and hauling it away, and spotting trucks
delivering sand and cement. The scaffolding work is
regarded as a regular part of the laborer's function in
assisting the masons. Accordingly employment of
Carpenters to perform this segment of laborer's work
would be unduly disruptive of a continuing work
process. Furthermore, it is clear that the laborers are
capable of performing the work in dispute to the
Employer's satisfaction.
4. Joint Board award
Although the Joint Board decision awarding the
disputed work to employees represented by the
Carpenters may be a factor to be considered, it cannot
be controlling, since as found by the United States
Court of Appeals for the Ninth Circuit, supra, all of
the parties herein had not agreed to be bound by the
decision of the Joint Board.
5. Conclusion
473
evidence as to area practice, the Employer's long-
standing assignment, and the collective-bargaining
agreement between Masonry Builders, Inc., and
Laborers Local 585, we shall determine the jurisdic-
tional dispute herein by awarding the disputed work
to employees represented by'Laborers. Our determi-
nation is limited to the particular controversy which
gave rise to this proceeding. In making this determina-
tion, the Board is assigning the disputed work to
employees represented by Laborers Local 585, 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 dispute:
Employees of Masonry Builders, Inc., who are
currently represented by Southern California District
Council of Laborers and Laborers International
Union of North America, Local 585, are entitled to
perform the work of erecting and dismantling
scaffolding standing over 14 feet or higher.
In view of all the foregoing, particularly the