Local Union No. 423 Laborers' International Union Of North America, Afl-Cio

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 423 Laborers' International Union of North America, AFL-CIO, and Pedersen In- sulation Company and Local No. 44, Interna- tional Association of Heat & Frost Insulators & Asbestos Workers, AFL-CEO. Case 9-CD-432 22 April 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this' Section 10(k) proceeding was filed on 25 July 19841 by the Employer, alleging that the Respondent, Local Union No. 423, Labor- ers' International Union of North America, AFL- CIO (Local 423) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to employees represented by Local No. 44, International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO (Local 44). The hearing was held on 20 and 21 September before Hearing Officer James E. Horner. 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. 1. JURISDICTION The Company, an Ohio corporation, is engaged as an insulation contractor in the building and con- struction industry in Columbus , Ohio, where it an- nually purchased and received products , goods, and materials valued in excess of $50,000, directly from points outside the State of Ohio. The parties 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 Local 423 and Local 44 are labor organizations within the mean- ing of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a construction contractor en- gaged in the installation of commercial and indus- trial insulation. Between 1981 and 1983, the Em- ployer used employees represented by Local 44 on three asbestos removal jobs. The Employer subcon- tracted the rest of the asbestos removal jobs to companies which generally used employees repre- I Unless otherwise stated, all dates refer to calendar year 1984 sented by Local 423. The Employer and Local 44 have a collective-bargaining agreement. The Environmental Protection Agency has pro- mulgated strict guidelines for asbestos removal. A general procedure consists of the following: (1) sealing off the work area with sheets of plastic vis- queen; (2) setting up air monitors; (3) setting up portable showers; (4) wetting the asbestos with a wetting agent; (5) removing the asbestos; (6) clean- ing up the work area and double-bagging the debris; and (7) transporting the asbestos and vis- queen sheets to a landfill. In 1984 the Employer decided to create a sepa- rate division to do asbestos abatement work. On 1 May the Employer signed an interim agree- ment with Local 423; a collective-bargaining agree- ment was signed 1 June. The Employer began using employees represented by Local 423 on as- bestos abatement jobs. On 19 June Local 44 filed a grievance with the local trade board against the Employer. Local 44 contended that the Employer had improperly sub- contracted the asbestos removal work. Greg Pedersen, the Employer's vice president, sent a letter to Local 423 advising it of the situa- tion and of the Employer's intent to begin using employees represented by Local 44. Fred Boffman, Local 423's business manager, responded by claim- ing the work and by threatening to retaliate by lawful means if the work was reassigned. He later stated that if the work was reassigned, members of Local 423 would picket and engage in on-the-job action. B. Work in Dispute The work in dispute consists of the removal of asbestos from commercial buildings. C. Contentions of the Parties The Employer and Local 423 contend that the disputed work should be assigned to employees represented by Local 423 based on considerations of economy and efficiency and area practice. The Employer also contends that assignment to the em- ployees represented by Local 423 is consistent with its past practice and its contractual obligations. Local 44 contends that there is no jurisdictional dispute, that there is no particular work in dispute, and that the alleged threat was fraudulently in- duced. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b )(4)(D) charge has arisen. However, before the Board pro- ceeds with a determination of dispute, it must be 275 NLRB No. 34 LABORERS LOCAL 423 (PEDERSEN INSULATION) satisfied that there ' is reasonable . cause to believe that Section '8(b)(4)(D)' has been violated, and that there is no agreed=upon method for voluntary set- tlement of the dispute. At the onset of the dispute; employees represent- ed by Local 423 were performing the asbestos re- moval work. Local 44 claimed the work for the employees whom it represents.2 The Employer in- formed Local 423 that it intended to give the as- bestos removal work to the employees represented by Local 44. Local 423 then informed the Employ- er in writing that, if the disputed work were reas- signed, its, members would picket and that the union would instigate on-the-job action. The Board finds that there is reasonable cause to believe that Local 423's threat to picket was real and not a sham. The parties stipulated that there exists no agreed- upon method for voluntary adjustment of the in- stant dispute. On the basis of the above-described threat and the record, as a whole, we find reasonable cause to believe that a violation of -Section 8(b)(4)(D) has occurred and that there exists no agreed 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.3 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. Collective-bargaining agreements The Employer has current collective-bargaining agreements with both Local 44 and Local 423. Local 44's agreement provides for the "disman- tling" of "cold or hot thermal insulation," while Local 423's agreement covers the "wrecking of buildings and all structures including demolition for remodeling and renovation." We conclude that the removal, for scrap, of asbestos insulation could rea- sonably be covered by both agreements. Therefore, 2 In fact, Local 44 claimed the work in dispute during the hearing 3 Local 44's motion to quash is therefore denied 183 we find that this factor does not favor -assignment to either of the competing groups of employees, 2. Company preference and past practice The Employer has clearly shown that it prefers to use employees represented by Local 423. The Employer entered into a collective-bargaining agreement with Local 423 for the' purpose of em- ploying workmen who are represented by Local 423. We find that this factor supports an award of the work to employees represented by Local 423. 3. Area and industry practice It is the practice of area contractors and subcon- tractors to use employees represented by Local 423 more often than employees represented by Local 44. We find that this factor favors assignment of the work to the employees represented by Local 423. 4. Relative skills There are no specific skills required for asbestos' removal work. Any competent workman with the, proper instruction and the correct equipment can perform the task. Local 423 provides its members with a 16-hour course, part of which is a "hands on" segment. Local 44 provides its members with- a 12-hour training session. We find that both groups of employees are capa- ble of performing asbestos abatement work. Thus, we find that the skill factor does not favor assign- ment to either of the competing groups of employ- ees. 5. Economy and efficiency of operations The Employer contends that it is both more eco- nomical and efficient for the disputed work to be performed by the employees represented by 'Local 423. Asbestos removal is an unskilled job and therefore it is more economical to use an unskilled workman than a skilled workman. On the basis of the evidence presented, we find- that the factor of economy and efficiency of oper- ations favors assignment of the disputed work to the employees represented by Local 423. ' Conclusions After considering all the relevant factors, , we conclude that employees represented by Local Union No. 423, Laborers' International = Union, of North America, AFL-CIO are entitled to perform the work in dispute . We reach this conclusion rely- ing on the Employer's preference , the area prac- tice, and the economy and efficiency of operation. In making this determination, we are awarding the 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work to employees represented by Local 423, not Employees of Pedersen Insulation Company rep-. to that Union or its members . The determination is resented by. Local Union No. 423, Laborers' Inter- limited to the controversy that gave rise to this national Union of North America, AFL-CIO, are proceeding. entitled to perform the work in dispute, the remov- DETERMINATION OF DISPUTE al of asbestos, from commercial buildings. The National Labor Relations Board makes the following Determination of Dispute.