Laborers (Eshbach Brothers)

LABORERS (ESHBACH BROS., LP) 344 NLRB No. 4 201 Laborers International Union of North America, AFL–CIO and Eshbach Brothers, LP and Inter- national Union of Operating Engineers, AFL– CIO Local 542. Case 4–CD–1129–1 January 28, 2005 BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER DECISION AND DETERMINATION OF DISPUTE The underlying charge in this Section 10(k) proceeding was filed on October 24, 2003,1 by Eshbach Brothers, LP (the Employer) alleging that Laborers International Un- ion of North America, AFL–CIO (Laborers) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forc- ing the Employer to assign certain work to employees it represents rather than to employees represented by Inter- national Union of Operating Engineers, Local 542 (Op- erating Engineers). The hearing was held on August 12, 2004, before Hearing Officer Harold A. Maier. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire re- cord, the Board makes the following findings. I. JURISDICTION The parties stipulated that the Employer is a Pennsyl- vania-limited partnership that operates as a masonry con- tractor with a principal place of business in Reading, Pennsylvania. During the 12-month period prior to the hearing, the Employer purchased and received goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. The parties further 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 Laborers and Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer is a contractor performing masonry work in eastern Pennsylvania. The Employer is signa- tory to collective-bargaining agreements with Laborers. Since the 1960s, the Employer has been a member of Employing Bricklayers Association (EBA), which is made up of masonry contractors working in the five- county area around Philadelphia, Pennsylvania.2 The EBA has collective-bargaining agreements with Operat- ing Engineers, Laborers, and Bricklayers. By a letter 1 Unless otherwise indicated, all dates are in 2003. 2 The five-county area consists of Bucks, Chester, Delaware, Mont- gomery, and Philadelphia counties, in Pennsylvania. dated January 22, 1983, the Employer withdrew its au- thorization for the EBA to represent the Employer in collective bargaining with Operating Engineers. By letter dated February 7, 1983, Operating Engineers acknowl- edged receipt of the Employer’s January 22 letter and stated its desire to negotiate a new collective-bargaining agreement with the Employer. However, no such nego- tiations ever took place. In October 2002, the Employer began work on a ma- sonry project at Central Bucks High School in Bucks County, Pennsylvania. The Employer assigned the opera- tion of the rough terrain forklifts (Pettibones) at this pro- ject to employees represented by Laborers. On June 2, Robert Schmitt, a business agent for Oper- ating Engineers, approached the Employer’s assistant foreman, Peter Munhall, at the Central Bucks High School jobsite and stated that “operating the Pettibones was [Operating Engineers’] work and that something was going to come of it,” and that “it wasn’t going away.” Operating Engineers picketed the jobsite the following 2 days, temporarily closing the jobsite. The Employer filed unfair labor practice charges over the picketing, but the charges were dismissed because of the short duration of the picketing and because Operating Engineers’ signs only protested the Employer’s wages and nonadherence to area standards. By letter dated June 25, Operating Engineers informed the Employer that it was filing a grievance over the Em- ployer’s failure to employ employees represented by Operating Engineers on its Pettibone forklifts. Operating Engineers asserted that the Employer’s conduct violated its collective-bargaining agreement with the EBA, to which it asserted the Employer was a party, and sought double damages as a pay-in-lieu remedy. Thereafter, in an August 21 letter to the Employer, Laborers claimed that employees it represents should operate the Em- ployer’s Pettibone forklifts at the jobsite. Pursuant to Operating Engineers’ grievance, an arbitra- tion hearing was held on October 21. The Employer refused to participate in the arbitration, because it was not a signatory to the collective-bargaining agreement between the EBA and Operating Engineers. On Novem- ber 20, the arbitrator found that the Employer was bound by the EBA’s collective-bargaining agreement with Op- erating Engineers, and awarded the contractual double damages to Operating Engineers. By letter to the Employer dated October 22, Laborers stated it will take “all necessary steps to protect its juris- diction and assignment of work in this area, including establishing a picket line in the event your company re- assigns this work to another craft.” On October 24, the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202 Employer filed the instant charge alleging that Laborers violated Section 8(b)(4)(D) of the Act. B. Work in Dispute The work in dispute is the operation of Pettibone fork- lifts on the masonry project at Central Bucks High School, in Bucks County, Pennsylvania. C. Contentions of the Parties The Employer and Laborers contend that there is rea- sonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, and that no voluntary means exist for adjustment of the jurisdictional dispute. In addition, the Employer and Laborers argue that the work in dis- pute should be assigned to the employees represented by Laborers based on the factors of: collective-bargaining agreements; employer preference and past practice; area and industry practice; skills and training; and economy and efficiency of operations. Operating Engineers contends that the notice of hear- ing should be quashed because there are no competing claims for the work in dispute, and because there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated. Operating Engineers argues that it has not claimed the work, and has only sought to enforce its con- tractual remedies under its collective-bargaining agree- ment with the Employer. Operating Engineers further argues that the threat by Laborers was a sham and a product of collusion between the Employer and Laborers. Finally, Operating Engineers argues that a collective- bargaining agreement between Operating Engineers and the EBA provides an agreed-upon method to resolve the dispute over the work assignment. Alternatively, Operat- ing Engineers contends that if the notice of hearing is not quashed, employees represented by Operating Engineers should be awarded the disputed work based on the fac- tors of: collective-bargaining agreements; area and indus- try practice; skill and training; and economy and effi- ciency of operations. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that: (1) there are competing claims for the work; (2) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated; and (3) the parties have not agreed on a method for the voluntary adjustment of the dispute.3 3 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422, 423 (2001); Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB 619, 622 (1999); Laborers Local 113 (Super Excavators), 327 NLRB 113, 114 (1998). We find that there are competing claims for the work. Laborers has at all times claimed the work in dispute, and Operating Engineers, despite its contention to the contrary, has also claimed the work by virtue of its filing of a pay-in-lieu grievance over the Employer’s assign- ment of the work to Laborers. See Laborers Local 113 (Super Excavators), 327 NLRB 113, 114 (1998) (filing of pay-in-lieu grievance constitutes a claim for work in dispute).4 We also find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. As described above, by its October 22 letter to the Employer, Laborers threatened to take certain action, including picketing, if the work in dispute was reassigned to employees repre- sented by Operating Engineers. Operating Engineers argues that Laborers’ threat was a sham and a product of collusion with the Employer. In support, it relies on the timing of the Laborer’s letter, i.e., right after the arbitra- tion on Operating Engineers’ grievance, and on the lack of evidence that Laborers had any intention of following through with its threat to picket. Contrary to Operating Engineers’ contention, the evi- dence fails to demonstrate that the threat was either a sham or the product of collusion. Thus, the assistant director of Laborers’ Construction Department, Gregory Davis, testified that he drafted both the August 21 and the October 22 letters because Laborers considered the Pettibone forklifts a “tool of the trade,” and because La- borers has always claimed “that piece of equipment.” Further, an employee of the Employer, Wilson Eshbach, testified without contradiction that there was no collusion between the Employer and Laborers. “In the absence of affirmative evidence that a threat to take proscribed ac- tion was a sham or was the product of collusion, the Board will find reasonable cause to believe that the stat- ute has been violated.” Laborers Local 271 (New Eng- land Foundation Co.), 341 NLRB No. 70, slip op. at 2 (2004). We further find that there is no agreed-upon method for voluntary adjustment of the dispute to which all par- 4 Member Liebman agrees that the evidence here is sufficient to sup- port a finding, consistent with Laborers Local 113 (Super Excavators I), supra, that the Operating Engineers have made a claim to the work. See also Laborers Local 113 (Michels Pipeline Construction), 338 NLRB 480, 485 (2002) (concurring opinion of Member Liebman). In her view, this case is distinguishable from Laborers Local 113 (Super Excavators II), 338 NLRB 472 (2002), where she dissented. In that case, the Operating Engineers Local 139, which had a collective- bargaining agreement with the employer, filed grievances that did not seek reassignment of the disputed work or pay-in-lieu. Rather, the grievances sought “only that the employer pay the employee(s) who actually performs the work at the (higher) rate specified” in the parties’ agreement. 338 NLRB at 478–479. LABORERS (ESHBACH BROS., LP) 203 ties are bound. Specifically, we find no merit to Operat- ing Engineers’ contentions that both Operating Engineers and Laborers are required to submit jurisdictional dis- putes to the “Plan for National Joint Board for Settlement of Jurisdiction Disputes,” and that the EBA’s collective- bargaining agreement with Operating Engineers requires both parties to present any jurisdictional dispute to that tribunal. “[I]n order for an agreement to constitute an agreed-upon method for voluntary adjustment, all parties to the dispute must be bound to that agreement.” Nickel- son Industrial Service, 342 NLRB 954, 955 (2004). The Employer is not a party to the EBA agreement because, as noted above, in 1983 it withdrew its authorization for the EBA to negotiate on its behalf. Further, the Em- ployer’s collective-bargaining agreement with Laborers does not include any reference to the EBA’s collective- bargaining agreement or the “Plan for National Joint Board for Settlement of Jurisdictional Dispute.” As the evidence does not establish that the Employer is bound by the EBA agreement, we, therefore, find that there is not an agreed-upon method for voluntary adjustment within the meaning of Section 10(k) of the Act. Accord- ingly, the dispute is properly before the Board for deter- mination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (Co- lumbia 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 ex- perience, reached by balancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in deciding this dis- pute. 1. Certification and collective-bargaining agreements There is no record evidence of any applicable Board certifications concerning the employees involved in this dispute. The Employer presented evidence that it has a collec- tive-bargaining agreement with Laborers. That agree- ment appears to cover the forklift work in dispute, inas- much as it states that it covers work that is “historically or traditionally or contractually assigned to and per- formed by members of the Laborers . . . including, but not limited to, the tending of masons, unloading, mixing and all handling of all materials . . . [c]onveying of such materials by any mode or method; unloading, erecting, moving, adjustment and dismantling of all scaffolds.” Operating Engineers contends that the Employer is bound by a collective-bargaining agreement between the EBA and Operating Engineers that covers “. . . operating . . . of all mechanical equipment used in and about the construction of building . . . including . . . fork lifts . . .” However, as stated above, the record shows that in 1983, the Employer withdrew its authorization for the EBA to bargain on its behalf with Operating Engineers and that no subsequent negotiations took place between the Em- ployer and Operating Engineers. Therefore, we find that the factor of collective-bargaining agreements favors an award to the employees represented by Laborers. 2. Employer preference and past practice The record shows that the Employer prefers that em- ployees represented by Laborers continue performing the work in dispute. At the hearing, the Employer’s chief administrative officer, Kenneth Eshbach, testified that the Employer’s past practice is to assign forklift work of the kind in dispute to employees represented by Labor- ers, and that the Employer prefers to continue employing the employees represented by Laborers. Eshbach further testified that the Employer has employed individuals represented by Laborers since at least 1983, and that the Employer has not employed employees represented by Operating Engineers to perform any work of the kind in dispute. Accordingly, we find that this factor favors an award of the disputed work to employees represented by Laborers. 3. Area and industry practice At the hearing, Laborers and the Employer presented testimony that the operation of rough terrain forklifts is work traditionally performed by Laborers-represented employees in the five-county area in Pennsylvania. Kenneth Eshbach testified that the Employer has em- ployed employees represented by Laborers to operate the forklifts in projects within this area. Laborers’ represen- tative Greg Davis, and Mason Contractors Association representative Mike Adelizzi, testified that the industry practice in the five-county area is for employees repre- sented by Laborers to perform forklift work of the kind in dispute. Operating Engineers also presented testimony that the disputed work has been performed by members of Oper- ating Engineers at similar projects within the five-county area. Representatives of five masonry contractors who are members of the EBA, testified that they employ em- ployees represented by Operating Engineers to operate Pettibone forklifts. Because the evidence shows that employees represented by both Operating Engineers and Laborers have performed the disputed work within the five-county area, we find that this factor does not favor DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204 an award of the disputed work to either group of employ- ees. 4. Relative skills and training The Employer and Laborers presented testimony that Laborers’ mason tenders are required to obtain special- ized training and certification in operating all-terrain forklifts and scaffold building, that they possess the re- quired skills and training to perform the disputed work, and that they have performed this type of work in the past. Adelizzi and Davis testified that employees repre- sented by Laborers receive training in mason tending through a 4-year construction apprenticeship program. Kenneth Eshbach testified that the Employer is satisfied with the quality of the work performed by its Laborers- represented employees. Operating Engineers contends that its members have the requisite skills needed to perform the disputed work. Operating Engineers’ representative, Charles Priscopo, testified that its members must complete 4 years of train- ing and certification before achieving journeyman status. A masonry contractor, Brendon Ward, testified that the employees represented by Operating Engineers are skilled in operating forklifts. On this record, we find that employees represented by both unions have the skills and training necessary to perform the work in question. This factor, therefore, does not favor an award of the disputed work to either group of employees. 5. Economy and efficiency of operations Kenneth Eshbach testified that in addition to operating the forklifts, its Laborers-represented employees also perform other work for the Employer at this project, such as mason tending and erection of scaffolding. According to Eshbach, if employees represented by Operating Engi- neers operated the forklifts, the Employer would still assign the mason tending and the erection of the scaf- folding to Laborers-represented employees. Eshbach testified that it is more economical and efficient to have employees represented by Laborers perform the whole project because they are more versatile than employees represented by Operating Engineers. Operating Engineers contends that the high skill level of employees it represents makes it more efficient to use employees it represents to perform the work in dispute. In support, Operating Engineers presented the testimony of masonry contractors John Giovanazzo and Nick Sabia. Giovanazzo testified that the performance level of em- ployees represented by Operating Engineers is such that it does not make using them less competitive than using Laborers-represented employees. Sabia testified that it is economically beneficial to use Operating Engineers members, because “if the guy’s a good operator, . . . he’s much quicker, much safer, knows how to maintenance his machine.” We find that, on balance, because the Laborers are per- forming other work on the project, aside from the dis- puted work, the factor of economy and efficiency of op- erations favors an award of the disputed work to those employees. Conclusions After considering all the relevant factors, we conclude that the employees represented by Laborers are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agree- ments, employer preference and past practice, and econ- omy and efficiency of operations. In making this deter- mination, we are awarding the work to employees repre- sented by Laborers not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. Scope of Award The Employer and Laborers request that the Board is- sue a broad award covering the five-county area consist- ing of Bucks, Chester, Delaware, Montgomery, and Philadelphia counties, Pennsylvania. The Employer and Laborers argue that this is necessary to avoid the recur- rence of similar work disputes between Operating Engi- neers and Laborers. “The Board customarily declines to grant an areawide award in cases in which the charged party represents the employees to whom the work is awarded and to whom the employer contemplates continuing to assign the work.” Laborers Local 243 (A. Amorello & Sons), 314 NLRB 501, 503 (1994). See also Laborers (Paul H. Schwendener, Inc.), 304 NLRB 623, 625 (1991). Be- cause Laborers is the charged party in this case, and be- cause the Employer contemplates continuing to assign this work to employees represented by Laborers, we con- clude that the issuance of a broad award would be inap- propriate, and we shall limit our determination accord- ingly. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. Employees of Eshbach Brothers, LP, represented by Laborers’ International Union of North America, AFL– CIO, are entitled to perform the operation of the rough terrain forklifts necessary for the masonry project at Cen- tral Bucks High School construction site located in Bucks County, Pennsylvania.