Laborers Local 223 (Turner Construction)

LABORERS LOCAL 223 (TURNER CONSTRUCTION) Laborers Local 223, Laborers International Union of North America, AFL-CIO and Massachusetts Laborers District Council of the Laborers Inter- national Union of North America, AFL-CIO (Turner Construction Company) and United Brotherhood of Carpenters and Joiners of America, Local 33 and Associated General Con- tractors of Massachusetts, Inc. Cases 1-CD- 737-1 and 1-CD-737-2 31 October 1985 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Charges in this Section 10(k) proceeding were filed on 26 November and 11 December 1984 by the Associated General Contractors of Massachu- setts, Inc. (AGC) alleging that the Massachusetts Laborers District Counsel, Laborers Local 223, La- borers International Union of North America, AFL-CIO (Local 223) and the United Brother- hood of Carpenters and Joiners of America, Local 33 (Local 33) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing Turner Construction Co. (Turner) to assign certain work to employees represented by the above Unions. The hearing was held 16 August 1985 before Hear- ing Officer John T. Downs. AGC and Local 33 each, filed posthearing briefs with the Board. 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- i rigs. 1. JURISDICTION AGC is an association representing employers engaged in the construction and related industries. Turner Construction Company, an AGC member, is a New York corporation engaged as a general contractor in the construction industry. Turner an- nually receives at its Massachusetts construction sites material valued in excess of $50,000 from out- side Massachusetts. The parties stipulate, and we find, that Turner is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Laborers Local 223 and Carpenters Local 33 are labor organizations within the meaning of See- tion 2(5) of the Act. I All dates refer to 1984 unless otherwise specified II. THE DISPUTE 99 A. Background and Facts of Dispute Turner Construction Company is the general contractor for the 140 Federal Street project, in Boston, Massachusetts, which involves the com- plete restoration, both exterior and interior, of a 56- year-old, 24-story building. Turner is a member of AGC and has authorized AGC to enter into collec- tive-bargaining agreements with both Carpenters Local 33 and Laborers Local 223. Turner subcon- tracted the masonry and scaffolding work for the project to Moliterno Stone Sales, Inc. which, in turn, subcontracted the scaffolding work to Marr Scaffolding Company. On 2 October representatives for Turner, Car- penters Local 33, and Laborers Local 223 held a prejob conference to discuss various aspects of the 140 Federal Street project. At that time, Turner Construction had not made a decision regarding whether, and to whom, it would subcontract the masonry and scaffolding work. According to the uncontested testimony of Walter F. Heyde, the job superintendent for Turner, Local 33 Business Agent Bob Marshall claimed at the conference that the scaffolding erection work should be assigned to employees represented by Local 33. Marshall fur- ther stated that if the Laborers erected the scaf- folding, Local 33 would picket the 140 Federal Street project as well as cause trouble on every other Turner job under the jurisdiction of Local 33. Marshall then left the prejob conference, al- though the conference was not over, because of an- other appointment. Pat Walsh, the business agent for Laborers Local 223, claimed the work for the Laborers as well. On 5 October AGC scheduled a meeting of Turner, Local 33, and Local 223 representatives to determine whether the dispute could be resolved. The dispute, however, was not resolved. Conse- quently, Local 33 indicated it would pursue the matter through arbitration. On 18 October Heyde contacted Ed Thompson, a business representative of Local 33, and requested a steward for work on 22 October. Thompson re- plied that he would not send a steward until Local 33 met again with Turner to complete the prejob conference. The parties scheduled a meeting for 22 October, but the meeting was canceled by Local 33. On 22 October Heyde sent a telegram to Local 33 requesting workers on the jobsite. Local 33, however, refused to dispatch the workers. On 19 November Marshall went to the jobsite and was again requested to supply employees to the job. Marshall responded, "Not this year, maybe 1985." 277 NLRB No. 13 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On 23 November Turner's representatives met with representatives of Local 33. Local 33 again asserted that it was entitled to the scaffolding erec- tion work and requested reimbursement for all work done by the Laborers on the scaffolding erection, prior to that date. On that same date, Turner's representatives met with representatives of Local 223 who informed Turner that they un- derstood the scaffolding work might be reassigned. Local 223 stated that if the reassignment were made, Local 223 would strike. Heyde responded by stating that the work was not under Turner's direc- tion and therefore Turner had no authorization to reassign the work. On 26 November Local 33 dispatched employees to the 140 Federal Street project. Local 33, howev- er, is pursuing a contractual claim against Turner before the American Arbitration Association alleg- ing that Turner violated its agreement with Local 33 by including in its contract with Moliterno Stone Sales, Inc. the erection and dismantling of scaffolding over 14 feet. B. Work in Dispute The disputed work involves the erection, mainte- nance, and dismantling of pipe scaffolding at the 140 Federal Street, Boston, Massachusetts project. C. Contentions of the Parties Local 33 contends that there is no reasonable cause to believe that it has violated Section 8(b)(4)(D) and that, therefore, the dispute is not properly before the Board and the notice of hear- ing should be quashed. Local 33 further contends that there is no clear showing that it threatened, coerced, or restrained Turner with an object of forcing Turner to assign the scaffolding erection work to employees represented by it. In this regard, Local 33 asserts that its refusal to send workers to the 140 Federal Street project was based solely on the alleged failure to complete a prejob conference. Local 33 "concedes," based on a prior determination of dispute by the Board, that in the event that the Board finds the dispute prop- erly before it, the work will be awarded to em- ployees represented by Local 223. AGC and Laborers Local 223 contend that Local 33 violated Section 8(b)(4)(D), that the dis- pute is properly before the Board, and that the work should be assigned to employees represented by Local 223. They further contend that because this is a longstanding dispute between the Carpen- ters and the Laborers, the Board should issue a broad order covering the geographic areas encom- passed in the Boston District Council of Carpen- ters' agreement with AGC. D. Applicability of the Statute In a 10(k) proceeding, it is necessary to deter- mine whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. In the instant case, in view of Local 33's contentions, this requires a finding as to whether there is reasonable cause for believing that Local 33 was claiming the work in question and, if so, whether it was using proscribed means to en- force its claim. Although Turner Construction Co. did not sub- contract the masonry and scaffolding erection work to Moliterno Stone Sales, Inc. until 23 Octo- ber, it is clear from the record that a dispute over who should perform the scaffolding erection work existed as early as 2 October. On that day, at a prejob conference involving representatives for Turner, Local 33, and Local 223, both Unions claimed the right to do the scaffolding erection work. As noted above, Local 33 threatened to picket the 140 Federal Street project site and cause trou- ble on every other Turner Construction site within its jurisdiction. Furthermore, Local 33 refused to send workers to the worksite after being requested to do so on 18 and 22 October and 19 November. In addition, Laborers Local 223 threatened to strike if the disputed work were reassigned to em- ployees represented by Carpenters Local 33. It is undisputed that there is no agreed-upon method for voluntary resolution of the dispute. We therefore 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 volun- tary 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 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). Because Local 33 conceded that if the dispute is properly before the Board, the work would be awarded by the Board to employees represented by LABORERS LOCAL 223 (TURNER CONSTRUCTION) Local 223,2 Local 33 did not present any evidence at the hearing regarding the merits of the dispute. Consequently, only AGC presented evidence at the hearing. In addition, we have considered evidence presented in Anastasi Bros., supra, which, by stipu- lation of all parties, has been incorporated into the record of the present case. The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements There is no evidence that the Board has certified either Local 33 or Local 223 as the collective-bar- gaining representative for any of the employees in- volved herein. Local 223's agreement with AGC, to which the general contractor (Turner Construction Co.) and the masonry and scaffolding subcontractors (Moli- terno Stone Sales, Inc. and Marr Scaffolding Co.) are signatory, specifically refers to the scaffolding work under the Laborers' "Jurisdictional Claims" (C.P. Exh. 2, app. A., p. 24): Erection, planking and removal of all scaffolds for lathers, plasterers, bricklayers, masons and other construction trades crafts. Building, planking or installation and removal of all staging, swinging and hanging scaffolds, in- cluding maintenance thereof. Local 33's agreement with the AGC, to which Turner, but not Moliterno Stone Sales or Marr Scaffolding, is signatory, also refers to scaffolding work under the Carpenters' claim of jurisdiction (C.P. Exh. 1, art. I, pp. 2-3). The Carpenters' agreement, however, also expressly bestows on the contractor the responsibility for making the specific assignments: The Contractor . . . shall make a specific assignment of the work which is included in his contract. For instance, if contractor A sub- contracts certain work to contractor B, then contractor B shall have the responsibility for making the specific assignment for the work included in his contract. If contractor B in turn shall subcontract certain work to contrac- tor C, then contractor C shall have the respon- sibility for making the specific assignment for the work included in his contract. [C.P. Exh. 1, art. III, pp. 6-7.] 2 These Unions brought a similar dispute before the Board in Laborers Local 223 (Anastas, Bros.), 272 NLRB 860 (1984). In that case , the Board awarded the disputed work, the erection of pipe scaffolding , to employ- ees represented by Laborers Local 223 101 If this section of the agreement is applied to the in- stant case, one reasonably may interpret the section as placing the responsibility of awarding the scaf- folding work on the scaffolding subcontractor ("Contractor A" would be the general contractor, Turner Construction Co., while "Contractor B" would be the masonry subcontractor, Moliterno, and "Contractor C" would be the scaffolding sub- contractor, Marr Scaffolding Co.). Further, as noted above, the masonry and scaffolding subcon- tractors are not signatory to Local 33's agreement with AGC. Consequently, Moliterno and Marr were under no contractual obligation to award the disputed work to employees represented by Local 33. Because Local 223 has a collective-bargaining agreement with Marr Scaffolding Co., which pro- vides that the scaffolding work is under the juris- diction of Laborers, and because Local 33 has no such agreement with Marr, we find that this factor favors an award of the disputed work to the em- ployees represented by Laborers Local 223. 2. The Employers' preferences and past practices Marr Scaffolding has assigned scaffolding work at various jobsites to employees represented by La- borers Local 223. The company employs a special crew of laborers trained to erect the type of scaf- folding used at the 140 Federal Street project. The assigment is consistent with longstanding practice of Marr Scaffolding and, therefore, this factor favors an award to employees represented by La- borers Local 223. 3. Area and industry practice The evidence shows that the consistent practice of masonry and scaffolding contractors in the Mas- sachusetts area has been to assign the work of erecting and dismantling scaffolding to employees represented by Laborers. Testimony presented at the hearing in Anastasi Bros., supra, and incorporat- ed into the record in the instant case shows that it is standard practice for laborers to erect pipe scaf- folding in the Boston area. 4. Economy and efficiency of operations Evidence presented at the hearing in Anastasi Bros., supra, indicates that in addition to the erec- tion and dismantling of pipe scaffolding, laborers perform other tasks involving masonry construc- tion. These other tasks consist of (1) manually un- loading various materials involved in masonry work such as cement, lime, and tools; (2) carrying these materials to a stockpile area; (3) mixing the mortar to be used in the masonry work; (4) tending 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bricklayers who actually install the masonry work; (5) cleaning up the masonry areas; and (6) removing construction materials from the construc- tion site.3 If the disputed work were assigned to employees represented by Carpenters Local 33, the same number of laborers would still be necessary to complete the other tasks. The considerations of economy and efficiency thus favor an award of the work in dispute to employees represented by La- borers Local 223. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers Local 223 are entitled to perform the work in dis- pute. We reach this conclusion relying on the col- lective-bargaining agreement between the various contractors and Local 223, the Employer's prefer- ences and past practices, area practice, and econo- my and efficiency of operations. In making this de- termination, we are awarding the work to employ- ees represented by Laborers Local 223, not to that Union or its members. Scope of Award AGC requests that the Board issue a broad work award covering the geographic areas encompassed by the Boston District Council of Carpenters' agreement with AGC. AGC contends that such an award is necessary in order to avoid repetition of similar jurisdictional claims and attendant work stoppages at construction, sites within this area. In this regard, AGC refers, inter alia, to the Board's decisions in Anastasi Bros. which awarded similar work to employees represented by Laborers rather than employees represented by Carpenters. In circumstances where there is an indication that the dispute is likely to recur, the Board's policy is to issue an award sufficiently broad to en- compass the geographical area in which an em- ployer does business and the jurisdiction of the competing unions coincide.4 s The parties did not specifically address economy and efficiency of operations at the hearing During the course of testimony, however, it was stated that employees of Marr Scaffolding Co represented by Labor- ers were involved in delivering and stockpiling scaffolding at the 140 Federal Street site, but were not assisting the bricklayers 4 See Laborers Local 146 (Modern Acoustics), 267 NLRB 1123 (1983) We conclude that Local 33's threat to cause trouble on every other Turner job under the juris- diction of Local 33 indicates that the dispute may recur on a Turner Construction site. Such a threat, coupled with the fact that Local 33 was recently involved in a similar dispute before the Board, An- astasi Bros., supra, justifies a broad award. Accordingly, and based on all of the above and the record as a whole, our determination in this case applies to all similar disputes concerning work at sites in which Turner Construction operates in which the geographical jurisdictions of the United Brotherhood of Carpenters and Joiners of America Local 33 and Laborers Local 223, Laborers Inter- national Union of North America, AFL-CIO, coin- cide. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees represented by Laborers Local 223, Laborers International Union of North Amer- ica, AFL-CIO are entitled to perform the work of erecting and dismantling pipe scaffolding at the 140 Federal Street project in Boston, Massachusetts, and at any other Turner Construction Co. project wherever the jurisdictions of the United Brother- hood of Carpenters and Joiners of America Local 33 and Laborers Local 223, Laborers International Union of North America, AFL-CIO coincide. 2. United Brotherhood of Carpenters and Joiners of America, Local 33 is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force Marr Scaffolding Co., Moliterno Stone Sales, Inc., and Turner Construction Co. to assign the work described in paragraph 1, above, to employees rep- resented by it. 3. Within 10 days from this date, United Brother- hood of Carpenters and Joiners of America, Local 33, shall notify the Regional Director for Region 1 in writing whether it will refrain from forcing Turner Construction Co., by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.