Laborers' District Council of Washington, DC

[I)(' ISIONS () NA'II()NALI LABOR REI.A IONS BOARI) I alorers' )istrict (ouncil of Washiligto, ).C('. and Laborers I'ail IVnion 456, AlLI-CI() I and Fruin- ('olnlo Corl)oration I lorn (onstruction Co., Inc., and 1 ad NV (Concrete, Inc., A loint Venture and il ited Brotherhood of Carpenters and Joiners of America, Pile l)rivers I 'oiio 2311, A-CIO. 2 ('asc (1) 240) March 16, 1979 I)l('I SI()N ANI) I)1' IRMKINATI ION OF I)ISPI 111t B' N\11lRis Ih ',iI I. (), Mtl]t'1. ANS) ITRISI)I I I his , 1i prooe:Llig lndc Stion 10()(k) of' tihe Na- tiltnl 1.lbo)r Rclttlloins A\c, s amended, tollowing a chalLrt iiledl h, 1 rui-('toltlon Corporation. Horn ('olstoction ('o., Inc., and I. and W (oncrete, Inc., A\ .)loint \eilile. helCi!l reterred to as the mployer. illclge thliat I at,,rers \Iolated Section 8(h)(4)(D) by Cien2lilII ill C'tiliiII plosCiibed activitN with !an oject ol' iltrillIg r rcqturlng tihe llploier to assign certain xx)ikt Io emph\ces cepresetcd r I Latborers rather than i to clpl \Lccs leptlcselnted b1 pile drivers. l'llrsunt t, nltic, a hearilg was held before Hear- ing ()tlic ., Alhert W. 'Palewicz on ()ctober 16 19, 1978. '1 he Implovcr, I ahmr-ers, and Pile I)rivers ap- peca red at ti ic heuing and wre afforded 'tfull opportu- lts t( hc 1,art. to exa tlillne anlld cross-examine wit- ncsss, arid to adduce c idciic hearing on the issues. 'ihcreafter, the I:nploycL I.abhrers, and Pile I)rivers filed brilts. PIursuant to lic pro isi)tis of Sction 3(h) of' the Nalii,[)ll I aiht) Relations .ct. its iamended, tile Na- tional I.abor elatiois Board has delegated its au- thiortY in Itis pcccding to a three-menier er panel. lhe Iot)ard i;has reviewed the rulings of the Hlearing ()Oticcr nade it thic hteaing aid finds that theN: are frc fI'inm prcudtl icial error. Tllhey are hereby affirmed. oIrpl the ctntire record in this proceeccing, the Ioard Intakcs thle oillowili o fitidings: I 111 BIII ,INISS ()I Iilli. I.M I' ()YIR Ihe pa;rltics stilpll;lcd. and e ind. that the Im- plor is a miiit \clottile Clenaged in the construction b ; :r stla\\; tl o n1;ittll il BClthICsdLI. Mar'L iitId, t(r tilhe \ashin lo1 o ll tI O sllrhvWu systil 1.ndes a contract !et hb the Washiington NMctropolitan Iransit Author- li :. It is stipula ted that hased upon the experience of tihe prior 6 mIniths since the joint veltttre has been in .xl'titcilc, the Itiplos ci \ill i its first 12 months of' opecrltioll ptiurchise arllid lC ciCve goodis aii services Itc ,era rcIt' lr,dt t, a1, I . ,, 'it i' TI/ L'T ,1i 1 ., it 1, I)1c s valued in excess of' $50,000 directly from points lo- cated outside the State of Maryland. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of' the Act to assert jurisdiction herein. 11. 111l IABOR ()R(GANIZ.AII()NS INV()I.VED We find, as stipulated by the parties, that Laborers and Pile Drivers are labor organizations within the meaning of Section 2(5) of the Act. 111I. 1'E111 )ISPtUI'I A. Background tand Facts f Dispute In early 1978,1 the Employer entered into a con- tract with the Washington Metropolitan Transit Au- thority (WMTA) for construction of a subway station in Bethesda, Maryland. The total value of the con- tract between the Employer and WMTA exceeds $23 tillion. On April 4 in Washington. I).C. the Employer held a prejob conference attended by representatives of the various craft unions who would be working at the Bethesda subway station project for the purpose of ironing out any disputes over job assignments. A dispute arose between representatives of Laborers and representatives of Pile Drivers over the Employ- er's proposed assignment of having laborers handle and unload lagging (wooden beams or slats used to line excavations) with power equipment. The lagging is unloaded by use of a forklift or crane operated by an operating engineer. When needed, it is picked up by a forklift and delivered down an open-cut ramp or lowered by use of a crane to the precise location being worked on. Workers are needed to direct the operator of the power equipment. to place spacers if a forklift is used, and to load chokers on and off if a crane is used. The handling and unloading of lagging with power equipment involves approximately 16 man-hours of work at the Employer's Bethesda sub- swa: station worksite, of which just over 8 man-hours had already been completed by the date of the hear- ing. lhe Employer informed both parties that each could submit evidence as to which craft should prop- erly be assigned the work in dispute before a final determination would be made. Laborers and Pile [)rivers each submitted to the Employer letters from different Washington, D.C., area heavy construction firms as evidence of past area practice in the assign- ment of handling and unloading of lagging with ' All dalte herearlte refer t 1978, unless ther ise specified. 241 NRB No. 15 LABORERS' DISTRICT COUNCIL OF WASHINGTON. I).( power equipment. On July 19 the Employer assigned the handling and unloading of the lagging with power equipment to Laborers. Soon after. Pile Drivers re- quested arbitration under the terms of its contract with the Employer over the validity of the decision to award the disputed work to aborers. Thereafter, ILa- borers advised the Employer both verbally and by letter that if it attempted to change the work assign- ment as to the handling and unloading of lagging with power equipment, Laborers would retaliate by striking and picketing the worksite. B. The Work in Dispute The work in dispute involves the handling of lag- ging with power equipment, whether with crane, fork- lift, loader, or other power vehicle, including loading. unloading, handling, moving, signaling, hooking on. hooking off, and placement of chokers, slings, and spacers. C. Contentions of the Parties The Employer contends that there is reasonable cause to believe that Laborers violated Section 8(b)(4)(D) by threatening to strike if the Employer reassigned the disputed work to Pile Drivers, and that there is no agreed-upon method for the voluntary ad- justment of the dispute that would bind all the parties concerned. The Employer further contends, with re- spect to the merits, that the employees represented by Laborers are entitled to perform the disputed work based on the factors of: employer past practice and preference, area and industry practice, safety, flexibil- ity, and economy and efficiency of operations. Labor- ers position is basically consistent with that taken by the Employer. At the hearing, Pile Drivers argued that the parties were bound to a private procedure which would re- solve the dispute over the assignment of the work in question. It accuses Laborers of attempting, with the help of the Employer, to bypass the negotiated plan for settling jurisdictional disputes through the arbitra- tion clauses contained in both Laborers and Pile Drivers individual craft agreements with the Em- ployer. Pile Drivers contends that employees repre- sented by Laborers lack the necessary skills essential for safe performance of the required tasks involved, while employees represented by Pile Drivers possess such requisite skills. Pile Drivers disputes Laborers and the Employer's assertions that use of a laborer rather than a pile driver in handling the lagging with power equipment is more in line with area practice and would result in greater economy and efficiency for the Employer. D. Aplicailii / tiI's 5,tanew Before the Board lma prced eith i ltcrminx- tion of the dispute pIrsI:lilI to Section 1l)1(k) ot the Act, it musllt bhe satisfied that there i r'Ciea lli i c;lausc to believe that Section S(h)(4)iD) ha s bcci kidl;l d anll that the parties have nlt ar'ecdKl p',o' ;: nlcthod for the voluntar. aldjustl entl l the disp iit. As noted aboe.c, I aborers idi Icd h I ilO\ erl- both verballx and in writing lthit alin tiellnlpt change the work assignment ;is t the l.ndalling (of lagging would result ill a1 strike. -here is rn, \ icicc in the record that the strike threait ;aiS .tilN thilng hut genuine. L'nder settled Board plic\. tht-lt 1 I'C i '.)11- able cause to belic,,e that a ilitir o (,o' Sctioli 8(b)(4)(1)) has ocurired i lab'r I,'rgini/ItIt . \ hose members are ssigned dispulted ork, put, imprper pressure on an cpllol er to conltiTllliC i ii ,nlgil- ment.4 Since the record shliws tiha l.ibhirr t[lrctt- ened to strike the Emplos er if it trilnslt'ircd ti dlis- puted work to emplo) ees represented hx Pile I)ii cIl. we find that there is reasonable cause to helic\e that an object of I.aborers action wkas to tfrce the Fnm- plover to continue to iassign the dlisplutld ,rk ht, elm- ployees represented h l.aborers in x\iolti,in ,it' Sc- tion 8(b)(4)(D). At the hearing, the parties jointI intr(iodlUcc i cpi.e of two individual craft agrecemenr ts. one a contrlct he. tween Laborers and the Iinplo\cr all the other a contract between Pile Drivers and the imploer. Pile Drivers introduced a cop> of the 1Muli-(('rift Arec- ment between the Washington Building and ('on struction Trades Council. AFI. ('10. and the \W.ih- ington Construction Employers ssociatoii.n ottli Laborers and Pile Dri\ers are sienatories to the Mul- ti-Craft Agreement. Pile I)rivers also int(odaiced al the hearing an authenticated copy of a doIculnuent e- ecuted by the Employer and Pile Dril\ crS in \k hich the Employer agrees to e bounlld t each andl e\ I [ c i'>p - vision of the Multi-Craft Agreement. The Mllti-('rat Agreement does not contain an independent provi- sion providing for an agreed-upon mlethod ftir volun1- tary adjustment of urisdictional disputes. ile Driv- ers contends. however, that since article IX of the Multi-Craft Agreement incorporates by refterence the terms of existing craft agreements, alnd since lIl the parties are either signatories to or hi)lnd h the 111l- ti-Craft Agreement, there exists an agreed-upon method for the voluntary adjustment of the dilspute. Contrary to the contention of Pile Drivers, in the circumstances of this case we are not satisfied that all parties have agreed to be bound to a vollllar\ mea;ns 4 Local 1 184, Southern (iltmrna Ditrri ( ,un lt o I ... rcr,. e '. R ' erlson Pipeline (onsructors,. 1'2 NR Il 178,17 I79 (i9 1). I rihtbraph'r, and Photoengravers Inrernaliona.l nion. 4/1 ('1(:) tI \lllnl Prt ,. Int-rlr rated). 186 NLRB 143. 145 1 Q'li) 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resulting in a private settlement of this dispute. As noted above, the Multi-Craft Agreement does not contain any independent provision that provides for an agreed-upon method for voluntary adjustment of jurisdictional disputes between parties that are signa- tories to the agreement. Moreover, the fact that there are two contracts, one between the Employer and La- borers and one between the Employer and Pile Driv- ers, each providing for the settlement of jurisdictional disputes under separate contracts by arbitration, does not support the conclusion that all parties have agreed to be bound to a procedure by which an ad- justment could be reached5 which would be upon all of them. While both arbitration clauses of the sepa- rate craft agreements state that the adversary union involved in the jurisdictional dispute "shall" be in- vited to the arbitration proceeding, nothing contained in the Multi-Craft Agreement requires either Pile Drivers or Laborers to attend an arbitration proceed- ing held by the other union and the Employer.6 Furthermore, if both Unions were to initiate arbi- tration proceedings under their respective contracts, separate and conflicting "adjustments" of the dispute by different arbitrators or panels could well-would even likely-result. Thus, in such a situation and where but one union was party to each arbitration, the arbitration would be binding only upon the par- ticipating union. And where both unions were parties to both arbitrations, the opposing arbitration awards would have the effect of nullifying each other, or worse, would create additional cause for disagree- ment between the parties while leaving the dispute in an unsettled and, perhaps, even more confused state. In each case, there would be no binding overall settle- ment of the dispute. The Board has long held that the voluntary adjustment must be binding upon both dis- puting unions as well as the employer to come within the meaning of voluntary settlement as set out in Sec- tion 10(b).7 In view of the foregoing, we conclude that the arbi- tration provisions contained in the separate craft agreements do not serve as a private settlement means sufficient to preclude us from proceeding to a I Local 1184, Southern California District Council of Laborers (H. M. Pat- terson Pipeline Constructors), supra at 1079. 6 we also note that neither the arbitration provision contained in the craft agreement between Laborers and the Employer nor the arbitration provision of the Employer's craft agreement with Pile Drivers permits the other union party to the jurisdictional dispute to participate in selection of the arbitral panel. In such circumstances, we doubt that the arbitrators or panels selected under the respective contracts would be impartial in considering and deter- mining the merits of the jurisdictional dispute before them. I Newspaper and Mail Deliverers' Union of New York (News Syndicate Co., Inc.), 141 NLRB 578, 580 (1963). That, conceivably, the separate arbitra- tions could lead to the same result is immaterial to our consideration of this issue. The critical point is whether there is some procedure that is binding on all the parties whereby a single determination, in each and every dispute which may arise between the parties, is ultimately obtained. New York Lith- ographers and Photo-Engravers' Union No. I-P (The New York Times Com- pany), 230 NLRB 425, 426 427 (1977). determination of the dispute. Accordingly, we find that this dispute is appropriate for resolution 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 disputed work after giving due consideration to various factors.8 1. Board certification The parties stipulated that none of the Unions in- volved in this proceeding has been certified by the Board as collective-bargaining representative of a unit of the Employer's employees. Accordingly, this factor is not helpful in resolving the instant dispute. 2. Collective-bargaining agreements The Employer is bound to a working agreement with Laborers' District Council of Washington, D.C., and is likewise bound to a labor agreement with Car- penters District Council of Washington, D.C. These contracts cover the parties and the work in dispute. Each contract specifically claims the handling of lag- ging with power equipment as work within the exclu- sive jurisdiction of that craft. Accordingly, we find that the collective-bargaining agreements are incon- clusive to support an award of the work to either group of employees. 3. Employer's past practice and preference Uncontroverted evidence was offered by the Em- ployer to establish that the predominant practice of the Employer in the past has been to use laborers to perform the work in dispute. It submitted a list of 15 recent heavy construction projects performed by the Employer, all of which utilized laborers to handle and unload lagging with power equipment. The Employer asserted that the only recent project it had in which laborers did not perform the disputed work was one in which the job superintendent made an unautho- rized reassignment of the work to Pile Drivers in or- der to prevent a work stoppage. We find, therefore, that the predominant past practice of the Employer favors an award to the employees represented by La- borers. The Employer, through the testimony of its direc- tor of labor relations, Richard G. Michaels, at the hearing and in its brief has expressed its preference I N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U.S. 573 (1961). 128 LABORERS' DISTRICT COUNCIL OF WASHINGTON, D.C. that the disputed work be awarded to employees rep- resented by Laborers. While we do not afford control- ling weight to this factor, we find that it tends to favor an award of the disputed work to employees repre- sented by Laborers. 4. Area and industry practice Laborers and Pile Drivers each presented testi- mony that employees represented by it have per- formed work similar to that in dispute within the Washington, D.C., metropolitan area. Therefore, there appears to be no established area practice with respect to the work in dispute. We accordingly find that the factor of area practice is inconclusive as to the merits of this dispute. Evidence was presented that general industry prac- tice is for laborers to perform the job assignment of handling and unloading lagging with power equip- ment. The Employer's witness, Mr. Michaels, testified without contradiction that based on his 20 years of managing heavy construction projects in four States, the work in dispute has historically belonged to labor- ers. We find that the factor of industry practice favors an award of the disputed work to the employees rep- resented by Laborers. 5. Relative skills and safety Pile Drivers contends that formal training in the handling and unloading of lagging with power equip- ment is a necessary skill for the safe performance of the work in dispute. It asserts that employees repre- sented by Pile Drivers possess such skills and that employees represented by Laborers do not. In sup- port of this contention, Pile Drivers asserted at the hearing and in its brief that employees represented by Laborers were performing the disputed work in a manner that was unsafe and in violation of safety law. The Employer asserted at the hearing and in its brief that the work in dispute requires no special skill or training, and that it was satisfied with the way the employees assigned to handle and unload the lagging with power equipment were performing the work. It further asserts in its brief that safety considerations favor an award to employees represented by Labor- ers. It contends that laborers are the prime craft working in the excavation and that laborers are more careful when the safety of other laborers is involved. We find that an award to employees represented by Laborers would not be inconsistent with consider- ations of safety and relative skill necessary for per- formance of the work in dispute. 6. Economy and efficiency of operations With respect to economy and efficiency of opera- tions, the record reveals that utilization of employees represented by Laborers offers greater flexibility for the performance of the work in dispute. At the time of the hearing, there were 48 laborers and only I pile- driver employed at the Bethesda jobsite. The single piledriver is responsible for sawing the lagging to an appropriate size for installation thereof by the labor- ers. He alone supplies the laborers with the right sized lagging and is essential for the continuity of the lag- ging operation. If he left the excavation to go to the surface to handle and unload lagging, the entire op- eration below would suffer time delays. This would result in inefficiency and extra cost to the Employer due to the interruption in the lagging installation while the piledriver was above ground. On the other hand, the Employer employs many laborers with no specific job duties who perform miscellaneous tasks. It would afford the Employer great flexibility to be able to simply have whichever laborer was free at the moment handle and unload the lagging. If the Em- ployer is allowed to use only piledrivers in performing the disputed work, its only alternative to bringing the single piledriver up from his duties in the excavation would be to hire an additional piledriver employee. This would result in higher costs and greater ineffi- ciency for the Employer even if, as Pile Drivers con- tend, it hired a piledriver apprentice. The handling and unloading of lagging was over 55 percent com- pleted at the time of the hearing. The record reveals that lagging is delivered to the jobsite on an intermit- tent basis with no fixed schedule of delivery. If the Employer is forced to hire an additional employee just to handle and unload lagging with power equip- ment, that employee may not have work to perform for more than an hour or less per day, as no other piledriver assignments currently exist at the jobsite. We therefore find that the factors of economy and efficiency of operations favor an award of the dis- puted work to employees represented by Laborers. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that employees represented by Laborers are entitled to perform the work in dispute. We reach this conclu- sion upon the following facts: the Employer's present assignment is consistent with its predominant past practice and preference and is not inconsistent with area practice or the requisite skills necessary to safely perform the work; such assignment is consistent with 129 1F[( ISIONS ()OF NA IONAM I.ABOR RELATIONS BOARD industry practice and results in greater econoix and efficiency of operations. In making this determiniation, we are assigning thie disputed work to employees curlentl represented by Laborers, hut not to l.abhlcrs its members. O()ur present detcrminalltio i limited to the pirticular dis- pute which ga e rise to tiis procceding. DE'ERMINA'I'ION O1: DISPlI'T Pursuant to Section (1(k) of' the National l.ahor Relations Act, as amended, and upon the basis of the foregoing factors and the en tire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees of Fruin-Colnon Corporation, Horn ('onistruction Co., Inc. and L. and W Concrete. Inc., A Joint Venture, at its Bethesda, Maryland. jobsite, wl :,are currentl represenited b l.aborers District Coutncil of' Washington. D.C., and Laborers Local l nioin 456, AFI ('10. are entitled to perform the work of handling ot lagging with power equipment. whether with crane, forklift, loader, or other power vehicle. including loading. unloading. handling, mov- ing, signaling, hooking on, hooking off, and place- ment of chokers, slings, and spacers. 130