Compressed and Open Air Caisson and Subway Workers

COMPRESSED AND OPEN AIR CAISSON AND SUBWAY WKRS. Compressed and Open Air Caisson and Subway Workers, Local Union No. 420, affiliated with Laborers International Union of North America, AFL-CIO and Contractors Associat:on of Eastern Pennsylvania and Slattery Associates, Inc. and Laborers Local 57, affiliated with the Laborers International Union of North America, AFL- CIO.1 Case 4-CD-416 August 31, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Contractors Association of Eastern Pennsylvania, herein called the CAEP, alleging that Compressed and Open Air Caisson and Subway Workers, Local Union No. 420, affiliated with Laborers International Union of North Ameri- ca, AFL-CIO, herein called Local 420, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Slattery Associates, Inc., herein called the Employer, to assign certain work to its members rather than to employees represented by Laborers Local 57, affiliated with the Laborers International Union of North America, AFL-CIO, herein called Local 57. Pursuant to a notice, a hearing was held before Hearing Officer Joan F. Homer on March 1, 2, 16, 17, 24, 25, and 29, 1977. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the CAEP and Employer jointly, by Local 420. and by Local 57. 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 proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is a New York corporation engaged in the heavy and highway construction business as a general contractor with its principal office and place of business in New York City. During the past calendar year, a representative period, the Employer has purchased goods and materials valued in excess of $50,000 directly from sources outside of the Commonwealth of Pennsylvania, which were shipped across the state lines to its jobsite in Pennsylvania. During the same period, the Employer performed services valued in excess of $50,000 for customers located outside the State of New York. We find the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 57 and Local 420 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 has been engaged as general contractor for the $7 million "B-64" construction project in Philadelphia, Pennsylvania. B-64 involves the renovation of the Frankford Avenue subway station at 2d and Market Streets and the related construction of a highway viaduct enabling pedestri- an traffic to and from the station to cross over Interstate 95. All parties to the instant jurisdictional dispute agree that only the subway station renova- tion phase of B-64 is involved herein. The Employer's witnesses at the 10(k) hearing described the B-64 subway project as an "open cut and cover" construction job. These witnesses ex- plained the "open cut and cover" procedure as one involving excavation from ground level to a specific subsurface grade level, construction or renovation of a structure at the subsurface level, and reconstruc- tion of a ground level cover over the finished subsurface structure. The witnesses also contrasted open cut and cover procedures to other subterranean construction methods, i.e., "tunnel" and "caisson" construction, wherein subsurface structures are built without substantially disturbing the surface features above them. In brief, the particular open cut and cover task to be performed by the Employer at the B-64 project site entails: removal of the existing street and roof over a portion of the 2d and Market Street subway station platform; excavation of earth from street to I The caption appears as amended at the heanng. 231 NLRB No. 178 1071 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subway level and demolition of certain existing walls; extension of passenger platforms and erection of new walls in an enlarged subway station; modernization of other existing station features; and reconstruction of the roof and street surface covering the station. In performing this work, the Employer will use employees from numerous crafts, including dock builders, operating engineers, teamsters, car- penters, roadsetters, cement finishers, ironworkers, and laborers. This proceeding concerns the Employer's assign- ment of laborers' work on the B-64 subway platform extension and renovation. Laborers on this job will render assistance to employees from the aforemen- tioned crafts and work independently on a variety of other manual tasks. As a member of the multiem- ployer CAEP, to which it has assigned its collective- bargaining rights, the Employer was bound at the commencement of the B-64 project to hire laborers in accord with the terms of a collective-bargaining contract between the CAEP and Laborers' District Council of the Metropolitan Area of Philadelphia and Vicinity, herein called the District Council. 2 Both Local 57 and Local 420 are members of the District Council. The record indicates that any laborer possessing a card from the International Union may obtain work on any job within the District Council's jurisdiction. However, responsibility for policing laborers' work on each construction project subject to that jurisdic- tion is specifically assigned to one of the five District Council member locals. The Employer therefore assigned laborers' work on the B-64 subway station renovation to Local 57. The Employer had previous- ly given Local 57 jurisdiction over laborers at its B- 53 construction project, which was in progress adjacent to the B-64 site when work on the latter began in November 1976. According to extensive testimony by the Employer's witnesses, B-53 in- volves open cut and cover procedures which are nearly identical to those planned for B-64. Although article II, section 2, of the contract between the CAEP and the District Council appears to provide a mechanism whereby any party to the contract can demand in writing a prejob conference to discuss jurisdictional problems, it is admitted that Local 420 did not request a prejob conference with respect to the B-64 laborers' work assignment and no such conference was held. Local 420's claim to this assignment became manifest, however, as the result of an incident which took place at the jobsite on or about the morning of November 30, 1976, when actual construction on the B-64 project was in its earliest stage. ' The collective-bargaining agreement, which was introduced into evidence as Local 420's Exh. 17. was due to expire on April 30, 1977. There The evidence clearly establishes that on the date in question a group of approximately 10 to 25 individu- als not employed by the Employer appeared in the B-64 subway station construction area. Members of Local 420 and Local 332, another District Council local, were in this group. They were joined by Fred McBride, Local 420's business manager. In apparent reaction to the presence and statements of the nonemployee group, employees of the Employer, including laborers, ceased operations in the immedi- ate vicinity of the 2d and Market Street station, although work continued elsewhere at the B-64 construction site. Joseph M. Capogrosse, the Employer's field super- intendent for both the B-64 and B-53 projects, testified that he approached the group and spoke with McBride, who told him, "I'm looking for work for my people" and "If nothing gets straightened out, I'm going to have to take this job." According to the testimony of Nathaniel Thompson, Local 57's shop steward on the B-64 and B-53 jobs, a discussion subsequently took place between McBride and Benjamin Irvin, Local 57's business manager. Thompson stated that during this discussion Irvin asked McBride if his men could return to work and an unidentified member of the group with McBride responded, "If you do, somebody is going to be hurt." Irvin corroborated Thompson's testimony to the extent that he recalled hearing individuals behind McBride make "remarks such as 'Nobody is going to work today,' and 'If anyone goes to work today,' you know, this is going to happen to him and that was going to happen to them." Irvin further testified that he told McBride he was being held responsible for whatever happened on the job. According to both Thompson and Irvin, McBride neither expressly accepted responsibility for, nor expressly disavowed, the actions and words of the men in the group around him. In his own testimony concerning events on or about November 30, 1976, McBride admitted he had met with a group of men, including members of Local 420, and discussed the need to resolve the B- 64 laborers issue. McBride denied, however, having heard any threats while he was present at the 2d and Market Street construction site or being aware of any work stoppages at that site. He also testified that he told both Capogrosso and Irvin he was not closing the Employer's B-64job down. John R. Smith, Jr., general manager of the CAEP, testified that, upon learning of the aforementioned events at the B-64 construction site, he telephoned McBride and inquired about the problem which had arisen. Smith said McBride firmly insisted that "[m ly is no indication in the record whether the CAEP and District Council currently have any contractual relationship. 1072 COMPRESSED AND OPEN AIR CAISSON AND SUBWAY WKRS. people have a right to work on that job." Smith then informed McBride that the CAEP would have to file charges with the National Labor Relations Board and seek a temporary restraining order. The work stoppage continued unabated and, pursuant to Smith's statement of intent, charges were filed with the Board on December 6, 1976. On the next day, the CAEP obtained a temporary restraining order against Local 420. Thereafter, on December 30, 1976, the temporary restraining order became, with the consent of all parties, a final order of the United States District Court for the Eastern District of Pennsylvania. There is no evidence of work stoppag- es occurring afterwards at the Employer's B-64 site. B-64 construction is scheduled to continue until late 1978. B. The Work in Dispute The work in dispute involves all work assigned to laborers on the 2d and Market Street Frankford Avenue subway station platform extension phase of the Employer's B-64 construction project in Phila- delphia. Pennsylvania. C. Contentions of the Parties The CAEP and Employer contend that there is reasonable cause to believe Local 420 has violated Section 8(b)(4)(D) of the Act, that there is no agreed- upon method for voluntary resolution of the dispute, and that the work in dispute should be awarded to Local 57 on the basis of the Employer's assignment and past practice, area and industry practice, and prior jurisdictional awards by the Laborers Interna- tional hearings panel. Local 57 contended at the hearing that a voluntary means for settlement of the work dispute exists, but it also contends in its posthearing brief that its members are entitled to perform the work in dispute on the basis of the same factors cited by the CAEP and Employer. Local 420 contends that a Board decision is unnecessary or would be improper herein because: (1) there is a voluntary procedure for settling the jurisdictional dispute; (2) the CAEP has already procured relief in the form of a permanent injunc- tion; (3) "there is no effect on the Association, the moving party, as to which union prevails in this action"; (4) no work stoppage actually occurred at the B-64 jobsite; and (5) the appearance of Local 57's counsel in the 10(k) hearing represented a conflict of interest which prejudiced the position of Local 420 in this proceeding. If the Board should :' It Would not be appropriate for the Board to determine in this IO(k) proceeding whether. as alleged bh Local 420. the appearance of William J. (Cottrell as coiunsel Iar Local 57 represented a conflict of interest. Based on decide the jurisdictional dispute, Local 420 claims the right to perform the disputed work on the basis of its charter from the International Union and past practice in the area and industry. D. Applicability of the Statute Before the Board may proceed to a determination of the dispute under 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 and that the parties have not agreed upon a method for the voluntary adjustment of the dispute. As previously discussed, there is evidence in the record that on or about November 30, 1976: (1) the appearance of Local 420 members and other nonem- ployees resulted in a work stoppage by employees of the Employer at part of the B-64 construction site; (2) Local 420 Business Manager McBride, while in the company of these nonemployees, demanded for Local 420 the work assigned by the Employer to Local 57; (3) unidentified individuals in the group with McBride voiced threats of violence if Local 420's claim to the disputed work were not honored; (4) McBride made no apparent effort to disclaim threats made in his presence; (5) in the wake of these events, the work in dispute ceased until the issuance of a temporary restraining order on December 7, 1976. On the basis of this evidence, and without resolving the issues of credibility raised by the testimony, we are satisfied that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. As members of the District Council, Local 57 and Local 420 are bound to honor decisions rendered by the hearings panel of the Laborers International Union. Neither the Employer nor the CAEP have consented to being similarly bound, however. It is therefore clear that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Contrary to Local 420's contentions, it is of no consequence in our assessment of the propriety of determining the jurisdictional dispute in this pro- ceeding that the parties herein have consented to a permanent judicial injunction with respect to the work in dispute or that the CAEP will not be differently affected by an award of this work to Local 420 rather than Local 57. Accordingly, we find that this dispute is properly before the Board for determination. 3 our review of the record. we find no indication that Local 420's procedural or substantive rights have been prejudiced in any way by Cottrell's participation in this case. 1073 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 4 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: I. Board certification and collective- bargaining agreements All parties stipulated that the Employer is not failing to conform to an order or certification of the Board determining the bargaining representative for the employees performing the work in dispute. Article II. section 1, of the collective-bargaining agreement between the CAEP and the District Council sets forth its jurisdiction over heavy and highway construction, thereby clearly establishing its applicability to the work in dispute. The agreement does not, however, specify the craft jurisdiction of local unions who are members of the District Council. This factor therefore favors neither party to the jurisdictional dispute. 2. The Employer's assignment and past practices The Employer assigned the work in dispute to employees represented by Local 57. According to Jerome White, the Employer's vice president, this assignment was made after consultation with other Philadelphia area contractors who used Local 57 laborers to perform work similar to the work in dispute. White also testified that Local 57 had been previously assigned the task of policing laborers working on the Employer's B-53 construction job, an open cut and cover project comparable and adjacent to the B-64 work in dispute. Local 420 did not contest Local 57's jurisdiction over the B-53 job. We find that the Employer's assignment and past practice favors an award to laborers represented by local 57. 3. Area and industry practice Local 420 contends that, as a "sandhog" local its members have traditionally performed underground laborers' work in tunnels, caissons, and subways. It further contends that the work in dispute has been incorrectly characterized as open cut and cover work V L. R B v. Radio & Television Broadcast Engineers Union, Local 1212, Ilntlrniatioinal Brotherhood of Electrical Workers, AFL CIO [Columbia Br;iad(itiing Snvwei], 364 US. 573 (1961). rather than subway work. In support of these contentions, Local 420's business manager, McBride, testified with respect to prior Philadelphia area jobs similar to the B-64 subway renovation which Local 420 had policed. McBride's testimony was supple- mented by three letters from two Philadelphia construction contractors who attested to Local 420's jurisdiction over laborers' assignments on subway construction projects. Neither McBride's testimony nor the letters, which were introduced as exhibits at the hearing, referred to any instance in which Local 420 has had jurisdiction since 1967 over work similar to the work in dispute. On the other hand, four different witnesses testified with respect to specific Philadelphia area projects in which they had been personally involved and to general practices in both area and industry during the past decade. They collectively testified that on all construction jobs similar to the B-64 subway renovation, which they consistently defined as an open cut and cover construction project, laborers performing work similar or identical to the work in dispute were policed by Local 57. Based on the entire record, we find that the weight of the evidence relevant to this factor favors an award to the employees represented by Local 57. 4. Relative skills, economy, and efficiency of operation There are no special skills involved in performing the work in dispute. Laborers represented by Local 57 and laborers represented by Local 420 are equally capable of accomplishing the tasks required of them at the Employer's B-64 site. Furthermore, an award of the work in dispute to laborers represented by Local 420 rather than to those represented by Local 57 would have no effect on the economy or efficiency of the Employer's operation. Accordingly, the factors of skill, economy, and efficiency do not favor either party claiming the disputed work assignment. 5. Local union charters and awards by private union tribunals Local 420's charter from the Laborers Internation- al Union establishes its identity as a "Compressed and Open Air Caisson and Subway Workers" local. Local 57's charter is addressed to a "Construction and General Laborers' " local. Neither charter makes any other reference to the scope of craft jurisdiction which the respective Locals are autho- rized to exercise. s International Association of Machinists, Lodge No 1 743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). 1074 COMPRESSED AND OPEN AIR CAISSON AND SUBWAY WKRS. Local 420 asserts that its charter vests it with jurisdiction over subway work, including the B-64 construction job, in the Philadelphia area. However, Local 57 introduced evidence of three recent deci- sions rendered by the Hearings Panel of the Laborers International Union which indicate that the Interna- tional Union does not share Local 420's interpreta- tion of its charter authority. The decisions, made in 1968, 1970, and 1974, awarded disputed laborers' work assignments to Local 57 rather than Local 420. Witnesses familiar with these disputes testified that they involved subway-related construction proce- dures in three Philadelphia area projects similar to the Employer's B-64job. Although decisions of the hearing panel are not binding on our determination of the merits of the jurisdictional dispute in this 10(k) proceeding, we find that they are an evidentiary factor herein which favors Local 57's claim to the disputed work. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by Laborers Local 57, affiliated with the Laborers International Union of North America, AFL-CIO, are entitled to the work in dispute. We reach this conclusion relying on the specific factors of the Employer's assignment and past practice, area and industry practice, and past awards by private union tribunals involving similar jurisdictional dis- putes between Local 57 and Local 420. In making this determination, we are awarding the work in question to employees who are represented by Laborers Local 57, affiliated with the Laborers International Union of North America, AFL-CIO, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. 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 makes the following Determination of Dispute: 1. Employees of Slattery Associates, Inc., who are represented by Laborers Local 57, affiliated with the Laborers International Union of North America, AFL-CIO, are entitled to perform all work assigned to laborers on the 2d and Market Street Frankford Avenue subway station platform extension phase of the Employer's B-64 construction project in Phila- delphia, Pennsylvania. 2. Compressed and Open Air Caisson and Sub- way Workers, Local Union No. 420, affiliated with Laborers International Union of North America, AFL-CIO, is not by any means proscribed by Section 8(b)(4)(D) of the Act to force or require Slattery Associates, Inc., to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Compressed and Open Air Caisson and Subway Workers, Local Union No. 420, affiliated with Laborers Internation- al Union of North America, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 1075