Newton, Massachusetts District Council

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newton, Massachusetts District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Porrazzo and Hurley Co., Inc. and Laborers' International Union of North America, Local 560, AFL-CIO. Case 1-CD-184 June 27, 1969 II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, the Carpenters District Council and Laborers International Union of North America, Local 560, AFL-CIO, herein referred to as Laborers Local 560, are labor organizations within the meaning of Section 2(5) of the Act. DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Porrazzo and Hurley Co., Inc., herein called the Employer, alleging that Newton, Massachusetts District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Carpenters District Council, has violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer S. Anthony diCiero on March 26, April 1, 3, 7, 8, 10, and 16, 1969. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with the case to a three-member panel. All parties, including Laborer's International Union of North America, Local 560, AFL-CIO, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence on the issues. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs of Carpenters District Council and the Employer, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Porrazzo and Hurley Co., Inc., a Massachusetts corporation with its principal office and place of business in Newtonville , Massachusetts, is engaged in the erection of masonry as a masonry contractor in the building and construction industry in various parts of the Commonwealth of Massachusetts. During the past 12 months Porrazzo and Hurley Co., Inc., has purchased and received goods from outside the Commonwealth of Massachussetss valued in excess of $50,000. The parties agree, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. III. THE DISPUTE A. Background and Facts of the Dispute The Employer has a prime contract with the Marriott Corporation for the construction of exterior masonry on the Boston-Marriott Hotel site in Auburndale, Massachusetts. The Employer is a member of the Masonry Contractors Association which has a collective-bargaining agreement with the Laborers International Union, which provides: The work jurisdiction covered by this Agreement when performed by members of the ASSOCIATION ("Employer") shall include the work which has been historically or traditionally or contractually assigned to members of the LABORERS' INTERNATIONAL UNION OF NORTH AMERICA in the tending of Masons including ... the unloading, erecting, dismantling, moving and adjustment of scaffolds. The Employer, pursuant to said agreement, employs members of Laborers Local 560 to erect, move and disassemble metal tubular scaffolding at the above- mentioned hotel, as well as elsewhere. This agreement does not provide that the signatories submit jurisdictional disputes to the National Joint Board for the Settlement of Jurisdictional Disputes or abide by its decisions . The Employer has no collective-bargaining agreement with Carpenters District Council. David J. Porrazzo, president of the Employer, testified that in October 1968, he met Carpenters District Council' s business agent, Edward Gallagher, on the jobsite and informed him the Laborers would be used to erect scaffolding. Gallagher replied, "we'll see about that." On November 15, the Employer received a letter from the National Joint Board awarding scaffolding work exceeding 14 feet to Carpenters. The Employer, on November 29, informed the National Joint Board that that Board had no jurisdiction over the Employer. On January 9, 1969, Gallagher presented himself at the jobsite and met with the Employer's representative, Marriott's representative, and a representative of Laborers Local 560, to discuss the use of laborers for erection of scaffolding over 14 feet. Gallagher stated that the National Joint Board had awarded the work to the Carpenters, and the Employer replied that it was going to use Laborers. The next day, January 10, pickets who were members of Carpenters District Council appeared at 177 NLRB No. 36 NEWTON, MASSACHUSETTS DIST . COUNCIL CARPENTERS the jobsite. As a result of the picketing, none of the employees of any other contractor or subcontractor scheduled to work on the site performed any work for approximately an hour and a half. B. Work in Dispute The work in dispute here is the erection, assembly and dismantling of steel tubular section scaffolds above the height of 14 feet at the Boston-Marriott Hotel in Auburndale, Massachusetts. C. The Contentions of the Parties Carpenters District Council contends that the Employer is bound by the National Joint Board award and that the area practice supports a work assignment to the Carpenters. The Employer contends that the disputed work belongs to laborers because of Employer, area, and industry practice, skill and efficiency, contract coverage, and the Employer's assignment of the work to laborers. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which a Section 8(b)(4)(D) charge has arisen . However, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The record shows that in January 1969, Carpenters District Council's business agent at the hotel construction site, where laborers employed by the Employer were engaging in scaffolding work, told the Employer that carpenters and not laborers should perform that work. Shortly thereafter, there having been no reassignment of the work, Carpenters picketed and a work stoppage developed. In view of the conduct described above, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute The Employer, through its membership in Masonry Contractors Association, is bound by a collective-bargaining agreement with Laborers' Local 560's International Union which covers scaffolding work. The Employer has no contract with Carpenters District Council or its affiliates. The record shows that scaffolding is erected as the masonry work progresses and that the time spent erecting and dismantling scaffolding is minimal. Therefore, laborers assigned this work are also available to assist the masons, performing such tasks as stacking bricks and tending mortar. The use 159 of carpenters on scaffolding over 14 feet high would necessarily require the Employer hire carpenters, there being none presently on its payroll, and would result in the accumulation of idle time and increased costs in the production of the work. Testimony by the Employer and other masonry contractors compels the conclusion that the overwhelming practice of this Employer as well as of the industry, both in the city of Newton and the Commonwealth of Massachusetts, is to assign metal scaffolding work to laborers. Other factors usually considered by the Board in jurisdictional dispute cases provide little assistance in determining the instant dispute. Neither of the Unions has been certified. The Joint Board Decision, relied upon by the Carpenters in support of its claim, is not binding upon the Employer, who is unwilling to abide by that Decision.' Further, both carpenters and laborers possess the requisite abilities to do the work. In view of the foregoing, on the basis of the record as a whole, and upon appraisal of all relevant considerations, we believe that the work in dispute should be awarded to employees represented by Laborers Local 560. The fact that the Employer's assignment conforms to its own and area practices and is consistent with its collective-bargaining agreement, the fact that laborers employed by the Employer not only have the requisite skill but are familiar with all facets of the work, and the attendant efficiency of operations lead us to conclude that Employer's assignment of the work is the proper one.' Therefore, we shall determine the dispute by assigning the work in question to employees of Porrazzo and Hurley Co., Inc., represented by Laborers Local 560. In making this determination, which is limited to the controversy which gives rise to this proceeding, we are not assigning the work to Local 560 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 Carpenters District Council contends that the Employer is bound by the Joint Board award through its contract with Bricklayers , Masons and Plasterer's International Union , AFL-CIO However, the provisions of the Employer's contract with Bricklayers are not binding , or relevant, with regard to this dispute, which is between Carpenters and Laborers. We do not imply that a decision of the Joint Board may not be a relevant factor, to be considered together with all other relevant factors, simply because the Employer was not bound by the submission In the circumstances of this case, however, we can accord little weight to the award. We note that it did no more than state that the dispute was governed by a 1920 decision issued by the Joint Board . In view of the fact that the award failed to disclose the factors relied upon and the reasoning employed in reaching the ultimate determination , we are unable to evaluate the award in the light of our own standards to ascertain the degree of significance to be accorded it. International Union of Operating Engineers, Local Union No 158, AFL-CIO, 172 NLRB No. 192. See United Brotherhood of Carpenters and Joiners of America, Local No 213, AFL-CIO ( General Masonry, Inc.). 175 NLRB No 101; United Brotherhood of Carpenters and Joiners, Local No 153 (Blount Bros Corporation), 175 NLRB No 81 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following determination of the dispute. 1. Employees employed by Porrazzo and Hurley Co., Inc., who are represented by Laborers' International Union of North America, Local 560, AFL-CIO, rather than carpenters represented by Newton, Massachusetts District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the erection, assembly and dismantling of metal tubular scaffolds used in the erection of masonry walls at the construction site of the Boston-Marriott Hotel in Auburndale, Massachusetts. 2. Newton, Massachusetts District Council, 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 the Employer , Porrazzo and Hurley Co., Inc., to assign the above work to carpenters represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Newton, Massachusetts District Council , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Region 1, in writing, whether it will or will not refrain from forcing or requiring the Employer, Porrazzo and Hurley Co., Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to carpenters, rather than to employees of the Employer who are represented by Laborers Local 560.