Laborers Local 1058 (Facchiano Construction)

LABORERS LOCAL 1058 (FACCHIANO CONSTRUCTION) Construction, General Laborers and Material Han- dlers Local Union No. 1058 , AFL-CIO and Faechiano Construction, Inc. Case 6-CD-812 20 December 1985 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS DENNIS, JOHANSEN, AND BABSON The charge in this Section 10(k) proceeding was filed 20 August 19851 by the Employer, alleging that the Respondent, Laborers Local 1058, 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 employees it represents rather than to the Employer's unrepresented employees. The hearing was held 13 September before Hearing' Officer Kim Siegert. 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. 1. JURISDICTION The Employer, a Pennsylvania corporation, is a sewer, water 'line, and street contractor with an office and place of business located in Pittsburgh, Pennsylvania; where during the 12-month period ending 31 August it received products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. The parties stipulate, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Labor- ers Local 1058 is a labor organization within the meaning of Section 2(5) of the Act. II. THE DISPUTE, A. Background and Facts of Dispute In February the Employer won separate con- tracts with the Pittsburgh Sewer and Water Au- thority for sewer line replacement in downtown Pittsburgh and catchbasin reconstruction, areawide. The Employer has no collective-bargaining agree- ment with Laborers Local 1058 and its employees are unrepresented. Beginning in February, the Employer's manage- ment spoke several times with Local 1058 repre- ' All dates are in 1985 unless otherwise specified, 1177 `sentatives. During these discussions, the Union made threats and claimed for its own members the work the Employer's employees perform. Specifi- cally, on 12 August Local 1058's Business Manager Joe Laquatra said that union contractors were complaining that the Employer was'- performing "Union work" and he threatened to make it' very hard on the Employer, set up pickets, or do what- ever was necessary to make the Employer sign up with the Union. On 15 August Local 1058's Business Agent Jerry Chaney led a group of 20 men to the, Employer's Stanwix Street jobsite in, downtown Pittsburgh, where they disrupted operations, made threats, damaged equipment, and prevented employees from working. Chaney explained that the Union was going to stop the Company's work because "this is our work, we are tired of you scabs in downtown Pittsburgh." B. Work in Dispute2 The work in dispute is excavating, constructing, and installing new catchbasins, sewer' lines, and pipes;, backfilling the excavation; and-repaving the street surface at various locations within the city of Pittsburgh, Pennsylvania, under contractual ar- rangements with the Pittsburgh Sewer and Water Authority. C. Contentions of the Parties The Employer contends that 'a jurisdictional dis- pute exists and that the Respondent has violated Section `8(b)(4)(D) of the Act by coercing it to assign the work in dispute to employees the Re- spondent represents. The Employer' further" con- tends that the work ' in dispute should continue-'to be assigned' to its unrepresented employees. The Respondent- contends that it has never claimed the work the Enlplayer's unrepresented employees perform and that, therefore, no jurisdic- tional dispute exists. The Respondent contends, rather, that it merely has requested the Employer to become a party to its Heavy Engineering, Rail- road Contracting, Highway Construction, and Util- ities Construction Agreement. D. Applicability of the Statute At the 12 August meeting Local 1058's repre- sentatives reiterated their claim for ,the work and threatened to do whatever'was necessary, to make the Employer sign up with the Union, including stopping concrete deliveries and using Pittsburgh city government contacts to make future contract 2 The Employer seeks to expand the scope of the disputed work, how- ever, the record is too ambiguous to support that expansion 277 NLRB No. 134 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD awards difficult for the Employer to obtain. Fur- ther, at the 15 August confrontation at the Stanwix Street jobsite, a large,group led by a Local 1058 representative made threats, punctured tires, cut hoses, and, disrupted work, and the representative explained that this was being done because the Company's work was "our work." 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 agreement The parties stipulated, and we find, that there is no Board certification or bargaining order requir- ing the Employer to bargain with the Respondent or any other, labor organization, We also find that the Employer is not a party to a collective-bargain- ing agreement with Respondent or any other labor organization covering the work in dispute. Accord- ingly, we find that the factors of certification and collective-bargaining agreement are not relevant to our determination. 2.'Employer preference and past practice The ' Employer prefers assigning the disputed work to its unrepresented employees, as has been its practice for the previous 14 years. We find these factors favor awarding the work to the Employer's unrepresented employees. 3. Relative skills, economy, and efficiency The record indicates that the Employer specifi- cally trains its employees in work procedures it has developed and followed over the years. The record also indicates that the Respondent's members as well as the unrepresented employees are -able to perform basic laborers' work. Unlike the Respond- ent's members, however, the unrepresented em- ployees are able and- permitted to perform other crosstrade tasks such as finishing concrete, driving trucks, operating backhoes, and building wooden forms: Accordingly, we find the factors of relative skills, economy, and efficiency favor awarding the work to the Employer's unrepresented employees. Conclusions After considering all the relevant factors, we conclude, that the Employer's unrepresented em- ployees are entitled to perform the work in dispute. We reach this conclusion relying on the factors of the Employer's preference and past practice, and relative skills, economy, and efficiency of oper- ations. The determination is limited to the contro- versy that gave rise to' this proceeding.' DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. 'Unrepresented employees of Facchiano Con- struction, Inc. are entitled to perform the work of excavating, constructing and installing new catch- basins, sewer lines, and pipes; backfilling- the exca- vation; and repaving the street surface at various locations within the city of Pittsburgh, Pennsylva- nia, under contractual arrangements with the Pitts- burgh Sewer and Water Authority. 2. Construction, General Laborers and Material Handlers Local Union No. 1058, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Facchiano Construction, Inc. to assign the disputed work to employees it repre- sents. 3. Within 10 days from this date, Construction, General Laborers and Material Handlers Local Union No. 1058, AFL-CIO shall notify the Re- gional Director for Region 6 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the dis- puted work in a manner inconsistent with this de- termination. 3 We find nothing ,to indicate that Local 1058 will resort to proscribed means to obtain similar work in the future, and, therefore, we limit the award to the work in dispute