Laborers Massachusetts District Council (John McCourt Co.)

1460 309 NLRB No. 189 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 On September 8, 1992, a notice of voluntary settlement of the jurisdictional dispute in Case 1–CD–915 was jointly filed with the Board by the Employer, the Laborers, and Iron Workers Local 7, International Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO (Iron Workers). (Local 103 is not directly in- volved in Case 1–CD–915, but it was served with a copy of this no- tice.) The parties stated in their Notice that they had voluntarily re- solved their dispute regarding the assignment of the work in dispute in Case 1–CD–915, and requested that the Board not make an award of the work in dispute in that case. The parties’ request is unop- posed. It is granted, no award is made here of the work in dispute in Case 1–CD–915, and the notice of hearing in that case is quashed. 2 All dates are 1992 unless otherwise stated. Massachusetts Laborers’ District Council, Labor- ers’ International Union of North America, AFL–CIO and John McCourt Company International Brotherhood of Electrical Workers, Local 103, AFL–CIO and John McCourt Com- pany. Cases 1–CD–914, 1–CD–915, and 1–CD– 916 December 31, 1992 DECISION, DETERMINATION OF DISPUTE, AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT The charges in this Section 10(k) proceeding were filed July 1, 1992, by the Employer, alleging that Re- spondent Massachusetts Laborers’ District Council, La- borers’ International Union of North America, AFL– CIO (Laborers) in Cases 1–CD–914 and 1–CD–915, and Respondent International Brotherhood of Electrical Workers, Local 103, AFL–CIO (Local 103) in Case 1– CD–916, 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 cer- tain work to employees they represent rather than to employees represented by the other Respondent. The hearing was held August 5, 1992, before Hearing Offi- cer Gerald Wolper.1 The National Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The Employer, John McCourt Company, is a Massa- chusetts corporation engaged as a heavy and highway contractor in the construction industry. It annually re- ceives goods and materials valued in excess of $50,000 directly from points located outside the Common- wealth of Massachusetts. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act, and that the Laborers and Local 103 are labor organizations within the mean- ing of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Massachusetts Bay Transportation Authority (MBTA) was engaged in a construction project at its Cabot Yard location in South Boston. The general con- tractor was H. J. Stabile Company, which subcon- tracted with the Employer to install underground (i.e., subsurface) ducts (also known as and referred to inter- changeably herein as a conduits) for electrical wiring. The ducts are epoxy-coated, reinforced, 5-inch-diame- ter pipes of varying lengths. They are installed in banks, which in this case are a series of nine ducts, ar- ranged in three layered rows of three, one row on top of another, and which are held in place and separated from each other by spacers: flat, 9-holed plates through which the ducts pass. The subsurface installation of the ducts requires the surface excavation of a trench, jackhammering of ex- isting pavement where necessary, removal of the exca- vated material, preparation of the trench surface, place- ment of the spacers, insertion of the ducts through the spacers to create the duct bank, placement of the duct bank in the trench, placement of a reinforced steel cage around the duct bank, pouring concrete to encase the duct bank, backfilling the excavation, and repaving the surface where necessary. The Employer assigned the operation of heavy equipment associated with these tasks to its employees represented by the Operating Engineers (not a party to or otherwise involved in this proceeding), and assigned the remainder of the work associated with these tasks to its employees represented by the Laborers. Steven Frick, vice president of operations for the Employer, testified that about 8 a.m. on June 30, 1992,2 he received a telephone call from Robert Fagone, MBTA project manager for the instant Cabot Yard project. According to Frick, Fagone told him that he had a call from the ‘‘electricians’’ and was told that there would be a picket line and a ‘‘disruption’’ if the work of installing the duct bank was not assigned to the ‘‘electricians.’’ Fagone called an emergency meet- ing for 11 o’clock that morning at his office with the parties to discuss the matter. After Frick spoke with Fagone, Frick called the La- borers’ office and spoke with Joseph Pavone, Labor- ers’ field representative. Frick told Pavone that the MBTA was concerned that the ‘‘electricians’’ had de- manded the duct installation work. Pavone told Frick that the Employer had properly assigned the work to the Laborers, and that if the Employer tried to reassign it, the Employer would ‘‘have a strike on [its] hands.’’ A meeting was held in Fagone’s office later that day, June 30, attended by, inter alia, Fagone, Frick, 1461 LABORERS MASSACHUSETTS DISTRICT COUNCIL (JOHN MCCOURT CO.) 3 Although the Laborers had been notified of this meeting, it did not send a representative. 4 Frick was the only witness called by the Employer. All evidence cited here relating to the above June 30 telephone discussions and to the discussions at the June 30 and July 2 meetings described infra comes from Frick’s testimony. 5 The Employer also contends that reasonable cause exists to be- lieve that Local 103 violated Sec. 8(b)(4)(D) when its business agent, Monahan, did not assure MBTA Project Manager Fagone that there would be no disruption in service. Because we find infra that Pavone’s threat to Frick establishes reasonable cause to believe that Sec. 8(b)(4)(D) has been violated, we find it unnecessary to pass on the Employer’s additional contention that Monahan’s failure to as- sure Fagone that there would be no disruptions also constitutes rea- sonable cause to believe that Sec. 8(b)(4)(D) has been violated. Employer Attorney Richard Wayne, and Local 103 Business Agent Charles Monahan.3 According to Frick,4 Fagone stated that there was a problem: that the ‘‘electricians’’ had expressed concern to him as to who was installing the duct bank; that he was not going to allow any disruption in service; and that he wanted the matter resolved immediately. Wayne asked Monahan what work Local 103 was claiming. Monahan said the handling and placing of the duct work in its entirety from unloading the materials from the truck to the backfilling of the trench after emplace- ment of the duct banks. Wayne asked Monahan why he thought that Local 103 was entitled to perform that work, because the work was expressly covered in the Employer’s collective-bargaining agreement with the Laborers. Monahan said that because the work was being performed on private property, it belonged to Local 103. Wayne stated that the Employer had as- signed the work in question to the Laborers and that the Employer did not understand what the problem was. Fagone stated that there was a problem, that the MBTA had been threatened with a strike, and that he would not tolerate any disruption of transportation service. He told the attendees to resolve the problem— ‘‘Make it go away.’’ He told them that he could not permit the duct installation work to continue because he feared a strike. Monahan denied threatening a strike, but requested that the duct installation work be turned over to Local 103, as ‘‘the proper licensed per- son in the Commonwealth to install the electrical duct bank.’’ Fagone asked if there would be a disruption in service, or if the duct installation could continue. Monahan did not provide an assurance that there would not be a disruption of work, and Fagone then told the attendees, ‘‘[T]hat’s it. No more work on the job. Stop work immediately. Until this is resolved, I will not tolerate a disruption of service.’’ Fagone, how- ever, rescinded his stop-work order later that day, and instructed the Employer to continue working until fur- ther notice. On July 2, another meeting was held, this one at the office of John Aylward, MBTA labor relations man- ager. In attendance at this meeting were, inter alia, Aylward, Fagone, Frick, and Wayne, but no one from either the Laborers or Local 103. Aylward asked for a compromise. But because neither representatives of the Laborers nor of Local 103 were present at this meeting, no progress was made towards a compromise. Aylward said that he would contact Local 103 to as- certain its position, but that in the meantime, and until further notice, the Employer was to stop the installa- tion of the ducts on the project. The Employer’s employees stopped work pursuant to these instructions on July 2 and, as of the August 5 date of the hearing, had not performed any further duct-installation work on the project. B. Work in Dispute This disputed work involves the installation of ducts at the MBTA’s Cabot Yard, South Boston, Massachu- setts location. C. Contentions of the Parties The Employer contends, inter alia, that reasonable cause exists to believe that the Laborers violated Sec- tion 8(b)(4)(D) of the Act when its field representative, Pavone, threatened the Employer’s vice president, Frick, that the Employer would ‘‘have a strike on [its] hands’’ if it tried to reassign the work in dispute from the Employer’s employees represented by the Labor- ers.5 The Employer further contends that the work in dispute should be awarded to its employees represented by the Laborers on the basis of the Employer’s collec- tive-bargaining agreement with the Laborers, the Em- ployer’s preference and past practice, area and industry practice, relative skills, and economy and efficiency of operation. Local 103 maintains that it ‘‘never made any de- mand from McCourt to assign the work to Local 103- represented employees . . . but only requested that the MBTA assign the installation of conduits as it has his- torically done; to the electricans.’’ Local 103 further contends that the work in dispute should be awarded to employees it represents, on the basis of collective- bargaining agreements it has with other employers. Local 103 asserts that these agreements cover employ- ees classified as journeymen and apprentice elec- tricians, who regularly perform work like that in dis- pute. Local 103 also contends that the work in dispute should be awarded to employees it represents on the basis that it is on an MBTA project, and that on such projects MBTA itself usually either assigns the work in dispute to electrical contractors who have collective- bargaining agreements with Local 103 or, less fre- quently, when MBTA chooses to perform work in- house rather than subcontract it, it assigns such work to its own wiremen employees who are represented by Local 103. 1462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 J. F. White Co. is not a party to the instant proceeding, and the Employer here, McCourt, was not a party to the 1988 state proceed- ing. Bonanno did not testify in the instant proceeding. Local 103 also relies on the testimony of Philip Bonanno, president of J. F. White Construction Com- pany (not involved in the instant case) in a June 1988 hearing before the Massachusetts Board of State Exam- iners of Electricians (discussed below).6 Local 103 further contends that, unlike for the La- borers, there is record evidence (the testimony of Local 103 Business Agent Donn Berry) that both apprentice and journeymen electricians are given formal training in the installation and bending of conduits. The Laborers did not file a brief or statement of po- sition with the Board. Although it was represented at the hearing by its business manager, Paul McNally, he made neither an opening nor closing statement, and he participated only briefly in the presentation of evi- dence. D. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k), it must be sat- isfied that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated and that the parties have not agreed on a method for voluntary adjustment of the dispute. The Employer’s vice president Frick testified that at the June 30 meeting in the office of MBTA Project Manager Fagone, IBEW Local 103 Business Agent Monahan said that Local 103 was claiming the han- dling and placing of all the duct work on MBTA prop- erty. Frick also testified that Laborers’ field representa- tive, Pavone, had earlier threatened Frick that the Em- ployer would ‘‘have a strike on [its] hands’’ if the Em- ployer tried to reassign the work in dispute from the Employer’s employees represented by the Laborers. There is no assertion, and no evidence, that an agreed-upon method exists for the voluntary adjust- ment of the instant dispute. We find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative 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 balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of the dispute. 1. Certifications and collective-bargaining agreements There is no evidence that either Local 103 or the Laborers are certified to represent any of the Employ- er’s employees. Accordingly, the factor of certifi- cations is not helpful to a determination of the dispute. The Employer has never had a collective-bargaining agreement with Local 103, or with its parent, Inter- national Brotherhood of Electrical Workers, AFL–CIO (IBEW). The Employer has, however, had successive collective-bargaining agreements with the Laborers for over 30 years, and is currently a signatory to the June 1, 1991–May 31, 1994 collective-bargaining agreement between the Laborers and the Labor Relations Division of the Construction Industries of Massachusetts, Inc., of which the Employer is a member. Article VIII, sec- tions 1 and 2, of this collective-bargaining agreement makes it applicable to ‘‘laying conduits and ducts’’ and ‘‘construction . . . of . . . duct lines.’’ Also, arti- cle XXIII and Appendix A of the contract make it ap- plicable to the ‘‘digging of trenches . . . prior to lay- ing pipe or conduit for any purpose.’’ Accordingly, we find that the factor of collective-bargaining agreements favors an award of the work in dispute to the Employ- er’s employees represented by the Laborers. 2. Employer preference and past practice Frick testified with specificity that on all employer projects as far back as 1981 involving the type of work that is in dispute here, the Employer consistently as- signed such work to its employees represented by the Laborers, and never assigned such work to employees represented by Local 103 or the IBEW. We find that this factor favors an award of the work in dispute to the Employer’s employees represented by the Laborers. 3. Area and industry practice Frick testified that the Construction Industries of Massachusetts, Inc., of which the Employer is a mem- ber, is a statewide employer association that represents employers engaged in heavy and highway construction. Frick testified that he knows that the other members of the association assign the type of work in dispute here to members of the Laborers, and that it is the practice of the approximately 24 signatories to the above-men- tioned 1991–1994 collective-bargaining agreement to assign such work to their employees represented by the Laborers. Local 103 Business Agent Donn Berry also testified that Local 103 represents the employees of ‘‘some- 1463 LABORERS MASSACHUSETTS DISTRICT COUNCIL (JOHN MCCOURT CO.) 7 Berry testified that he knew that three of these electrical contrac- tors did not have collective-bargaining agreements with the Laborers, but that he did not know whether three others did. He was not asked about the remaining two. thing under 200’’ electrical contractors in eastern Mas- sachusetts, all of whom are signatory to Local 103’s September 1, 1991–August 31, 1993 collective-bar- gaining agreement with the Electrical Contractors As- sociation of Greater Boston, Inc., Boston Chapter, Na- tional Electrical Contractors Association (Boston NECA). According to Berry, work like the work in dispute is consistently assigned, pursuant to this collec- tive-bargaining agreement, to employees represented by Local 103. More specifically, Berry testified that when the type of work in dispute here is performed by electrical contractors on MBTA property, it has ‘‘typi- cally and historically’’ been performed by employees represented by Local 103. Berry named eight particular electrical contractors as examples of contractors who are signatory to the Local 103-Boston NECA collec- tive-bargaining agreement and who have assigned such work to employees represented by Local 103.7 Local 103 Business Agent Charles Monahan testi- fied Local 103 represents MBTA’s electricians, re- ferred to as wiremen, and that these MBTA wiremen sometimes install conduit on MBTA premises. Monahan further testified that MBTA also employs ‘‘laborers,’’ but that to the best of his knowledge these laborers do not install conduit on the MBTA ‘‘sys- tem.’’ Finally, Monahan testified that since August 1990 there have been ‘‘many’’ projects involving the installation of conduits on MBTA premises. He named three such projects, including the overall H. J. Stabile Cabot Yard project in the instant case (but not, of course, the particular duct installation in dispute in this case). Monahan testified that on all three projects, Local 103-represented employees of electrical contrac- tors installed conduits. We find that the record, as summarized above, does not establish the existence of a consistent area- or in- dustry-wide practice of assigning work like that in dis- pute to either the Laborers or Local 103. Accordingly, we find that this factor does not favor award of the work in dispute to employees represented by either the Laborers or Local 103, and thus this factor is not help- ful in determining the dispute. 4. Relative skills Frick testified that the Employer’s employees rep- resented by the Laborers are ‘‘proficient’’ in perform- ing the work in dispute. Berry testified that all appren- tice electricians who go through the formal training es- tablished by the Joint Apprenticeship and Training Committee of Local 103 and the Boston NECA are given training in the installation and bending of con- duit, and that journeymen electricians are offered ‘‘training courses for updates with respect to the instal- lation of conduits.’’ The evidence shows that both groups of employees have the requisite skills to perform the work in dis- pute. Accordingly, we find that this factor is not help- ful in determining the dispute. 5. Economy and efficiency of operations Frick testified that the Employer believes that the most efficient and economical way to install duct work is the way the Employer does it, with employees rep- resented by the Operating Engineers operating the heavy equipment associated with the installation of duct banks, and with employees represented by the La- borers performing the remainder of the tasks associated with the work in dispute. Frick testified that it would be inefficient to use electricians in performing the work in dispute because, according to his understand- ing, ‘‘they only have one task to do,’’ and could not be utilized by the Employer for the remainder of a nor- mal workday. Local 103 asserts that the testimony of Philip Bonanno, president of contractor J. F. White Com- pany, in the above-mentioned 1988 hearing before the Board of State Examiners of Electricians, aptly de- scribes the typical manner in which poured-in-place conduits such as those in the instant case are installed. Bonanno testified there that (1) operating engineers ex- cavate the trench with an excavation machine, (2) la- borers do any shoveling required, actually creating the trench itself, (3) carpenters set up the form to receive the concrete, (4) ironworkers put in the steel reinforc- ing bars, (5) electricians install the fiberglass or PVC ducts, (6) laborers pour the concrete, and (7) some- times (but only ‘‘rarely’’) cement finishers ‘‘get in- volved in finishing.’’ Bonanno testified that when the installation of ducts is performed in this manner, the only participation by the electricians is in setting the ducts themselves, around which the concrete would be poured. Local 103 Business Agent Monahan testified that there was an electrical contractor, Seaver Company, working on the project in question, that Seaver’s elec- tricians were on the project site ‘‘at all times,’’ and that when the operating engineers and laborers had completed preparation of the trench for the actual in- stallation of the ducts, it ‘‘would be possible for elec- tricians to then come over and install the conduits . . . without breaking the continuity of the job.’’ Based on this testimony, Local 103 argues in its brief that An electrician could perform other duties during the day, and there would be no added costs in alerting the electricians on the site when the con- duit was to be installed. Therefore, the job would be as economic and efficient having trained elec- tricians install the conduit at the Cabot Yard site. 1464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Presumably, the electricians would perform these ‘‘other duties’’ while employed by another employer on the project. The evidence and argument summarized above indi- cate that employees represented by Local 103 would actually perform only one task involved in the overall work in dispute—putting the conduit in place in the trench, whereas employees represented by the Laborers would perform all such tasks except the operation of heavy equipment. Accordingly, we find that the factor of economy and efficiency of operations favors an award of the work in dispute to the Employers’ em- ployees represented by the Laborers. Conclusions After considering all the relevant factors, we con- clude that employees represented by the Laborers are entitled to perform the work in dispute. We reach this conclusion relying on the collective-bargaining agree- ment in effect between the Laborers and the Employer, the Employer’s preference and past practice, and econ- omy and efficiency of operations. In making this determination, we are awarding the work to employees represented by the Laborers, not to that Union or its members. The determination is lim- ited to the controversy that gave rise to this proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. Employees of John McCourt Company represented by the Massachusetts Laborers’ District Council, La- borers’ International Union of North America, AFL– CIO, are entitled to perform the installation of ducts at the Massachusetts Bay Transportation Authority’s Cabot Yard, South Boston, Massachusetts location. ORDER The notice of hearing in Case 1–CD–915 is quashed.