Laborers (Paschen Contractors)

LABORERS (PASCHEN CONTRACTORS) Laborers' District Council of Western Pennsylvania, a/w Laborers' International Union of North America, AFL-CIO and Paschen Contractors/- Dick Enterprises' and Pile Drivers Local Union No. 2264 of the Carpenters District Council of Western Pennsylvania, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 6-CD-788 30 April 1984 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS The charge in this Section 10(k) proceeding was filed 27 October 1983 by the Employer, alleging that the Respondent, Laborers, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by the Pile Drivers. The hearing was held 14 November 1983 before Hearing Officer Thomas R. Davies. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION Paschen Contractors, an Illinois corporation, and Dick Enterprises, a Pennsylvania corporation, are engaged as a joint venture in the construction of the Mt. Lebanon Tunnel subway project under a contract with the Port Authority of Allegheny County (the Port Authority). During the 12 months preceding the date of the hearing, this joint venture purchased and received goods and materi- als valued in excess of $50,000 directly from out- side the Commonwealth of Pennsylvania. The par- ties stipulate, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Laborers and the Pile Drivers are labor organizations within the meaning of Section 2(5) of the Act. I The notice of hearing and the hearing officer's report mistakenly refer to the Employer as Pachen Contractors/Dick Enterprises. 270 NLRB 59 II. THE DISPUTE A. Background and Facts of Dispute In 1981 the Port Authority awarded the Em- ployer the contract to construct the Mt. Lebanon Tunnel, which will become part of an integrated subway system connecting the city of Pittsburgh and the surrounding areas. The Employer's work- ers utilize the "cut and cover" method to excavate the large entrances at each end of the tunnel and to provide space for the necessary ventilation equip- ment. The method entails installing wooden slats known as lagging behind vertical piles implanted in the ground to prevent the earth from caving in. Prior to commencing construction, the Employer conferred with Laborers' and Pile Drivers' repre- sentatives. The Laborers and Pile Drivers each claimed the lagging work on the project, but the Employer did not assign that work at the meeting. In early October 1983 a Pile Drivers' representa- tive informed the Employer's project manager that the Pile Drivers would take whatever action was necessary to ensure that the Employer assigned the lagging work to employees represented by the Pile Drivers. On 19 October 1983 the Employer as- signed the lagging work to employees represented by the Laborers. On 24 October 1983 the Employ- er advised the Laborers that it might reassign the lagging work to employees represented by the Pile Drivers. On 25 October 1983 the Laborers' presi- dent notified the Employer that if the Employer re- assigned the lagging work the Laborers would "take the necessary action which shall include but not be limited to picketing" the project to retain that work. Employees represented by the Laborers contin- ued to perform lagging work. Lagging work has been completed at the south end of the tunnel. Considerable lagging work remains at the north end of the project. B. Work in Dispute The disputed work consists of the loading, hook- ing-on, signaling, handling, and installing of lagging at the Mt. Lebanon Tunnel project in Mt. Leba- non, Pennsylvania. C. Contentions of the Parties The Employer and the Laborers contend that the work in dispute should be awarded to employ- ees represented by the Laborers based on consider- ations of employer preference and past practice; in- dustry and area practice; and provisions of the ap- plicable collective-bargaining contracts. The Em- ployer further contends that such an assignment will result in greater economy, efficiency, and 327 DECISIONS OF NATIONAL LABOR RELATIONS BOARD safety of operations. The Laborers urges that the Board enter a broad order awarding the type of lagging work in dispute to employees it represents wherever its and the Pile Drivers' geographical ju- risdictions coincide. At the hearing the Pile Drivers' counsel moved to quash the notice of hearing on the grounds that the Pile Drivers had disclaimed the disputed work. After making that motion, the Pile Drivers' counsel left the hearing room and did not return. The Pile Drivers did not file a posthearing brief. D. Applicability of the Statute As set forth above, it is uncontroverted that the Laborers demanded the disputed work and threat- ened to picket the project in support of its demand if the Employer reassigned the work to employees represented by the Pile Drivers. Based on the fore- going and on the record as a whole, we find rea- sonable cause to believe that an object of the La- borers' action was to force or require the Employ- er to continue to assign the disputed work to em- ployees it represents. The Employer and the Laborers agree that there is no agreed method for the voluntary adjustment of this dispute to which all the parties are bound. The record discloses no evidence to the contrary. The Pile Drivers contends, however, that this proceeding should be dismissed because it effec- tively disclaimed the disputed work. 2 The Pile Drivers' counsel initially represented that the Pile Drivers disclaimed any interest in performing the disputed work at the Mt. Lebanon Tunnel project. Subsequently, the Pile Drivers' counsel limited the disclaimer to the lagging work at the south end of the tunnel and expressly reserved the Pile Drivers' right to claim the identical lagging work at the tun- nel's north end. The 10(k) notice of hearing described the work in dispute as the lagging work "at the Mt. Lebanon Tunnel Project." The construction of the north end of the tunnel, including the necessary lagging work, is part of that project. The Employer and Laborers agree that the Employer's original award of the lagging work to the Laborers covered the entire project. At the prejob conference the Pile Drivers demanded the disputed work for the entire project. The Mt. Lebanon Tunnel project encompasses the lagging work at both the north and south ends of the tunnel. Therefore, we find that the Pile Drivers' renouncing lagging work for only a por- s The Board has held that an effective renunciation of the work in dis- pute dissolves the jurisdictional dispute. See Sheet Metal Workers Local 55 (Gilbert L. Phillips), 213 NLRB 479, 480-481 (1974); Laborers Local 935 (C & S Construction Co.), 206 NLRB 807, 808 (1973). tion of the project is an attempt to avoid an author- itative decision on the merits, Electrical Workers IBEW Local 701 (Argonne National Laboratory), 255 NLRB 1157, 1160 (1981), and does not consti- tute an effective disclaimer of interest in the work. Operating Engineers Local 825 (Cruz Contractors), 239 NLRB 490, 490-492 (19 7 8).S Such an empty disclaimer cannot be given effect and, consequent- ly, the Pile Drivers' motion to quash the notice of hearing is denied. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreements No party claims that either Union is certified as the collective-bargaining representative of a unit of the Employer's employees. Accordingly, this factor is not helpful in resolving this dispute. The Employer is a member of the Constructors Association of Western Pennsylvania, which has collective-bargaining agreements with the Laborers and the Pile Drivers. The Pile Drivers' contract specifies that employees represented by the Pile Drivers will perform lagging work "used in and for foundations." Expert testimony indicated, how- ever, that subway tunnels and entrances do not have foundations within the accepted meaning of that word in the construction industry. We find the Pile Drivers' contractual claim without merit. The Laborers' contract does not expressly refer to the assignment of lagging work. However, the classifi- s Thus, Laborers Local 66 (Georgia-Pacific Corp.), 209 NLRB 611 (1974), is inapposite. In Georgia-Pacific, the Union's disclaimer of interest extended to all the work at issue in the 10(k) proceeding. In these cir- cumstances, Chairman Doston finds it unnecessary to pass on the con- tinuing validity of Georgia-Pacific. 328 LABORERS (PASCHEN CONTRACTORS) cation of labor set forth in the addendum to that contract does include a reference to "sheeters and shorers," and the record discloses that sheeting and shoring is synonomous with lagging. We find the Laborers' contract is sufficiently broad to include the work in dispute and, to that limited extent, the contract favors assignment of the lagging work to employees represented by the Laborers.4 2. Employer's past practice and preference The Employer presented evidence that it had uti- lized employees represented by the Laborers to handle and install lagging on previous jobs, at least two of which were tunnel projects. We find that these factors favor awarding the disputed work to employees represented by the Laborers. 3. Area and industry practice The Employer and the Laborers maintained that in the construction industry lagging work in con- nection with a cut and cover excavation is normal- ly performed by employees represented by the La- borers. At the hearing the Laborers introduced two prior Board decisions 5 and a decision of the Na- tional Joint Board and Impartial Jurisdictional Dis- putes Board where the employers and the National Joint Board awarded lagging work in the construc- tion of several subways to the Laborers. We find that the predominant industry practice favors an award of the disputed work to employees repre- sented by the Laborers. The Mt. Lebanon Tunnel is the second subway project in the Pittsburgh area. In an almost identi- cal work dispute between these Unions during the construction of the first portion of the Pittsburgh subway, the employer assigned the lagging work to employees represented by the Laborers. 6 We find that area practice, at least to a limited extent, favors the assignment of the disputed work to em- ployees represented by the Laborers. 4. Relative skills and safety considerations The Employer concedes that the employees rep- resented by the Laborers and the Pile Drivers pos- sess the requisite skill to perform the disputed work. We therefore find that this factor does not favor awarding the disputed work to either group of employees. The Employer's witness testified that an award of the disputed work to employees represented by the Pile Drivers would result in more employees in a confined area near heavy equipment and possibly See also Laborers (Anjo Construction Co.), 265 NLRB 186 (1982). Anjo Construction Co., 265 NLRB 186 (1982); Laborers {Fruin-Colnon Corp.), 241 NLRB 126 (1979). 6Anjo Construction Co., 265 NLRB 186 (1982). unstable embankments and thus increase the likeli- hood of injuries. Accordingly, we find that safety considerations favor an award of the disputed work to employees represented by the Laborers. 5. Economy and efficiency of operations The construction-site employees unload the lag- ging, cut the lagging to size, trim the face of the excavation, install and backfill behind the lagging, and, finally, remove the lagging. At the time of the hearing laborers did all lagging work and per- formed other jobs on the construction site. Accord- ing to unrefuted testimony, the Pile Drivers sought only to install and remove the lagging. Thus, if em- ployees represented by the Pile Drivers were to perform the work they claim, the Employer would still need the present complement of laborers to perform the other lagging work. Consequently, an award of the work to employees represented by the Pile Drivers would result in two different crews performing related work, thereby leaving employees standing idle during the successive stages of the lagging process. Further, the nature of the disputed work is unskilled and, while laborers are so classified, pile drivers are classified as skilled workers. Therefore, if the Board awarded the dis- puted work to employees represented by the Pile Drivers, the Employer would have to employ more workers and use skilled employees to per- form unskilled lagging work. Accordingly, we find that the factors of economy and efficiency of oper- ations favor an award of the disputed work to em- ployees represented by the Laborers. Conclusion After considering all the relevant factors, we conclude that employees represented by the Labor- ers are entitled to perform the work in dispute. We reach this conclusion primarily relying on the Em- ployer's past practice and preference, the fact that such an assignment is consistent with the predomi- nant industry and area practice, and the fact that such an assignment results in greater efficiency, economy, and safety of operations. In making this determination, we are awarding the work to em- ployees represented by the Laborers, not to that Union or its members. Scope of the Award The Laborers requests that the Board issue a broad award assigning the disputed work to em- ployees it represents on all jobsites where the terri- torial jurisdictions of the Pile Drivers and the La- borers coincide, contending that such an order is necessary to avoid a repetition of similar jurisdic- 329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional work disputes and the ensuing unlawful at- tempts to coerce the assignment of that work. Normally, 10(k) awards are limited to the jobsite or sites where the unlawful 8(b)(4)(D) conduct oc- curred or was threatened. There are two prerequi- sites for a broad areawide award: (1) there must be evidence that the work in dispute has been a con- tinuous source of controversy in the relevant geo- graphical area and that similar disputes may recur; and (2) there must be evidence demonstrating the offending union's proclivity to engage in further unlawful conduct in order to obtain work similar to that in dispute. Electrical Workers IBEW Local 104 (Standard Sign & Signal Co.), 248 NLRB 1144, 1148 (1980). The records shows a single prior dispute be- tween the Laborers and the Pile Drivers over the work in dispute. Further, it was the Laborers' con- duct, not the Pile Drivers' actions, that resulted in the filing of the unfair labor practice charge and the institution of this 10(k) proceeding. See Stand- ard Sign & Signal Co., 248 NLRB at 1148. Finally, while the Pile Drivers has expressed an interest in similar work that becomes available in the future, there is no evidence that the Pile Drivers will likely resort to unlawful means to claim that work. See Ironworkers Local 3 (Spancrete Northeast), 243 NLRB 467, 470 (1979). Under these circumstances, we find that a broad order is not warranted. Ac- cordingly, the determination is limited to the con- troversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Paschen Contractors/Dick Enter- prises represented by Laborers' District Council of Western Pennsylvania, a/w Laborers' International Union of North America, AFL-CIO, are entitled to perform the loading, hooking-on, signaling, han- dling, and installing of lagging at the Mt. Lebanon Tunnel jobsite located in the Allegheny County, Pennsylvania. 330