Laborers Local 22 (Agc Of Massachusetts)

LABORERS LOCAL 22 (AGC OF MASSACHUSETTS) Laborers' International Union of North America, AFL-CIO, Local 22 and Associated General .Contractors of Massachusetts, Inc. and Perini Corporation and United Brotherhood off Carpen- ters and Joiners of America, AFL-CIO, Local 218. Case 1-CD-759-1 10 April 1987 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS The charge in this Section 10(k) proceeding was filed on 30 October 1985 by Perini Corporation (Perini) and the Associated General Contractors of Massachusetts, Inc. (AGC)..The charge alleges that the Respondent, Laborers Local 22, violated Sec- tion 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing -Perini and its subcontractor Anastasi Brothers Corporation (Anastasi) to assign certain work to employees it represents rather than to em- ployees' represented by Carpenters Local 218. The hearing was held 10 March 1986 before Hearing Officer Robert A. Pulcini. ` ' The, National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing offi cer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The AGC is an association which represents em- ployers engaged in the building construction indus- try. Perini is a member of the AGC. Perini, a Mas- sachusetts corporation with its principal place of business in Framingham, Massachusetts, is a gener- al contractor in the building ; construction industry. Annually Perini receives goods valued in excess of $50,000 directly_ from points located outside the State of Massachusetts . Anastasi, a Pennsylvania corporation with its principal place of business in Marshfield, Massachusetts, is a masonry contractor , in the building construction industry. It annually receives goods valued in excess of $50,000 directly from points located outside the State of Massachu- setts. The parties stipulated, and we find, that Perini and Anastasi are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that i The parties stipulated that the transcript developed in Laborers Local 223 1Anastasi Bros Corp.), 272 NLRB 860 (1984), should be mcorporated into the present proceeding. 605 Laborers Local 22 and Carpenters Local 218 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background -and Facts of Dispute At all pertinent times, Perini, as a member of the AGC, and Carpenters Local 218 were parties to a collective-bargaining agreement which designated certain work, including the erecting and disman- tling of all scaffolding for all trades, as being within the jurisdiction of the Carpenters. The agreement also required that Perini would not sub- contract any work encompassed in the agreement to a subcontractor who was not a party to a collec- tive-bargaining agreement with the Carpenters. Perini, as the general contractor for the con- struction of the Charlestown Condominium Project in Charlestown, Massachusetts, subcontracted the project's masonry work to Anastasi. The subcon- tracted work included the erecting and dismantling of pipe scaffolding. Anastasia, who does not employ carpenters, is not a party to a collective-bargaining agreement with the Carpenters. It is, however, sig- natory to the AGC's contract with the Laborers, which describes the erecting and removal of all scaffolds as being within the jurisdiction of the La- borers, Prior to the commencement of the scaffolding work on this project in June 1985,2 Walter Chip- man, a Carpenters Local 218 official, met at the jobsite with Perini's superintendent, O'Rourke. Chipman told O'Rourke that the scaffolding work belonged to the carpenters and that if Perini as- signed it to Anastasi, the Carpenters would pursue the matter as a subcontracting violation and would not let carpenters work on the scaffold. Thereafter, Local 218's business agent, Green, requested that a meeting be set up at the jobsite to discuss the sub- contracting of the work to Anastasii. The meeting took place around 3 July. In attendance were Chip- man, Green, Perini's director of personnel) Gross, Project' Manager David Kibler, and Charles Schumb of the AGC. At that meeting, Local, 218 representatives asserted that the scaffolding work belonged to the carpenters and that in their estima- tion the subcontracting of it to' Anastasi was a vio- lation of the subcontracting clause. Chipman and Green added that they would do what they had to do to protect their work. As noted, the scaffolding work commenced in June and it was erected and dismantled by Anastasi employees. As of the date of the hearing, the work was nearly completed. 2 Hereafter, all dates refer to 1985. 283 NLRB No. 90 606 DECISIONS OF THE NATIONAL LABOR RELATIONS. BOARD Notwithstanding Chipman's earlier remarks, the carpenters did not refuse to work off the scaffold- ing. In the meantime, however, around mid-July, Local 218 filed a grievance against Perini concern- ing its subcontracting of the scaffolding work. In October, Gross learned that an arbitrator had ruled that Blount Brothers Corporation had breached its contract with another local of the Carpenters by subcontracting scaffolding work to a subcontrator who did not have an agreement with the Carpen- ters. Upon learning this, Gross became concerned because Local 218's pending grievance against Perini involved a similar dispute. Gross then con- tacted Lou Mandarin, the business agent for La- borers Local 22, to discuss the impact of the Blount arbitration award on the Charlestown project. Gross asked Mandarin to attend a meeting with Gross and a representative of the Carpenters to see if an ,accommodation, such as a composite crew or an adjusted work assignment, could be worked out. Mandarin said that he would not attend, a meeting and that it was his Union's work and, if Perini wished to change the assignment, he would not supply any laborers at all to the project. Gross testified that if the laborers were pulled from the job it would, in essence, be shut down. There- after, Perini did not ask Anastasi to use carpenters on the scaffolding work and no laborers were with- drawn from the jobsite. On 30 October and 15 November, respectively, Perini and AGC filed a charge and amended charge alleging that' Laborers Local 22 violated Section 8(bx4)(D). They filed a similar charge 30 October alleging that Carpenters Local 218 had also violated Section 8(b)(4)(D). This latter charge, however, was subsequently withdrawn. B. Work in Dispute The disputed work involves the erecting and dis- mantling of ,pipe scaffolding at the Charlestown Condominium Project in Charlestown, Massachu- setts. C. Contentions of the Parties Perini and AGC contend that the disputed work was properly assigned to employees represented by the Laborers based on the Laborers' collective-bar- gaining agreements with both Perini and Anastasi, company practice, area practice, economy and effi- ciency of operation, skills, and safety. They further contend that a broad award is warranted covering the geographic area encompassed by the Boston District Council of Carpenters' agreement with AGC. Carpenters Local 218 contends that no jurisdic- tional dispute exists. It argues that it is not claiming the disputed work but, is merely pursuing a griev- ance seeking a declaration by an arbitrator that the subcontracting clause of its agreement with Perini has been violated. -Local 218 contends that this conduct is not tantamount to a demand for the work because Local 218 has not sought any back- pay remedy or money damages for breach of the collective-bargaining agreement. At the hearing, Laborers Local 22 took the posi- tion that there is a viable jurisdictional dispute over the assignment of the work and that Local 218's at- tempted disclaimer at the hearing was ineffective. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe- that Section 8(b)(4)(D) _ has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. In October, Laborers Local 22 threatened not to supply any laborers to the project if the disputed work were reassigned to employees represented by Local 218. Further, the parties have stipulated that -there exists no agreed-on method for the resolution of this dispute.- We therefore find,reasonable cause to believe that a violation of Section 8(bX4)(D) has occurred and that there exists no agreed-on method of voluntary adjustment of the dispute 'within, the meaning of Section 10(k) of the Act. Accordingly, we fmd that the dispute is properly before the Board for determination.3 E. Merits of the Dispute Section 10(k) requires the Board to make aaf- 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). a As noted, in May, Carpenters Local 218 threatened to refuse to permit carpenters to work on the scaffolding, at the Charlestown Condo- minium Project for the purpose of forcing Perini to assign the disputed work to employees represented by Carpenters. Carpenters, in July, later threatened to do what they had to do to protect' their claim to the work. Carpenters Local 218 now indicates that it has disclaimed the work and contends that therefore no jurisdictional dispute exists. We find that Car- penters Local 218's attempted ' disclaimer of the work is not an effective renunciation which resolves the jurisdictional dispute. We note that Local 218's attempted disclaimer was first asserted at the hearing when the disputed work was almost completed See, e.g., 'Laborers Local 910 (Brockway Glass Co.), 226 NLRB 142, 143 (1976). LABORERS LOCAL 22 (AGC ' OF MASSACHUSETTS) The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreements There is no evidence that the Board has certified either Carpenters Local 218 or Laborers Local 22 as the collective-bargaining representative for any of the employees involved herein. As noted, the Laborers, through the AGC, has an agreement with Anastasi which describes, at Appendix A, the "Erection, planking and removal of all scaffolds for lathers, plasterers, bricklayers, masons and other construction trades crafts. Building, planking or in- stallation and removal of all staging, swinging and hanging scaffolds, including maintenance thereof" as being within the jurisdiction of the Laborers. The Carpenters does not have an agreement with Anastasi. Although Carpenters does have an' agree- ment with the general contractor, Perini, that agreement is not germane to the instant work dis- pute. That is so because it is Anastasi, not Perini, that is the employer for the purposes of deciding the work dispute. In this regard, it is well settled that it is the company that ultimately controls and makes the job assignment that is deemed to be the employer. Laborers Local 223 (Anastasi Bros. Corp.), supra, 272 NLRB at 862-863. In the present case, it is Anastasi who assigned the disputed work, and it is Anastasi that is the properly designated employer for the purpose of determining the award of the disputed work. Accordingly, because the Laborers have an agreement with Anastasi which indicates that the scaffolding work is under the jurisdiction of the Laborers, while the Carpenters have no agreement with Anastasi, we find that this factor favors an award of the disputed work to the em- ployees represented by Laborers Local 22. 2. Company preference and past practice Anastasi has assigned the disputed work to em- ployees represented by Laborers Local 22 and is satisfied with their performance. In addition, Anas- tasi has had a past practice of assigning scaffolding work on other projects to employees represented by Laborers. Anastasi does not employ carpenters and always employs laborers to perform scaffold- ing work. Accordingly, we find that these factors favor an award of the disputed work to the em- ployees represented by Laborers Local 22. 3: Relative skills Anastasi's field superintendent, Michael Sneel, testified that the laborers skillfully and safely erect the scaffolding and that he is satisfied with their ex- pertise. Sneel also testified that, in his experience, 607 carpenters are irisc fficiently'skilled and experienced to assist the hoisting crews in unloading and dis- mantling the scaffolding. Accordingly, on this record, we find that this factor. favors an award of the disputed work to the employees represented by Laborers Local 22. 4. Economy and efficiency of operations The laborers perform a variety of duties at the jobsite in addition to their duties in erecting and dismantling the scaffolding. If Anastasi were direct- ed to assign the disputed work to carpenters, Anas- tasi would not be able to lay off any laborers and the laborers would have periods of idle time result- ing from their not having the responsibility for the scaffolding. Accordingly, we find that this factor favors an award of the work in dispute to employ- ees represented by Laborers Local 22. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers Local 22 are entitled to perform the work in dis- pute. We reach this conclusion relying on the col- lective-bargaining agreement between Anastasi and the Laborers; company preference and past prac- tice; relative skills; and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Laborers Local 22, not to that Union or its mem- bers. Scope of Award Perini and the AGC request that the Board issue a broad award covering the entire geographic area encompassed by the Boston District Council of Carpenters' agreement with the AGC. Perini and the AGC argue that this is necessary to avoid the recurrence of similar work disputes between the Carpenters and' the Laborers which entail work stoppages and threatened, work stoppages. Perini and the AGC point out that the Board has previ- ously considered two virtually identical disputes and determined that the work in dispute there be awarded to employees represented by the Labor- ers.4 They further argue that the constituent locals of the Boston District Council of Carpenters have continued to claim the work through the use of al- legedly unlawful means and that Laborers' local unions within the geographic area of the Boston District Council of Carpenters are also intent on threatening or engaging in work stoppages over similar disputed work. 4 Laborers Local 22-3 (Turner Construction Ca), 277 NLRB 99 (1985); Laborers Local 223 (Anastasi Bros), supra. 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We conclude that the issuance of a broad award would be inappropriate and we shall limit our de- termination to the particular controversy that prompted the instant proceeding. In this regard, we note that there are two prerequisites for a broad, areawide award. First, there must be evidence that the disputed work has been a continuous source of controversy in the relevant geographic area and ,that similar disputes may recur. Second, there must be evidence demonstrating that the charged party has a proclivity to engage in unlawful conduct in order to obtain work similar to the work in dis- pute. Iron Workers Local 433, (Crescent Corp.), 277 NLRB .670 (1985); Electrical Workers IBEW Local 104 (Standard Sign), 248 NLRB 1144 (1980). In the present case, Laborers Local 22, not Carpenters Local 218, is the charged party. Finally, we note that in Anastasi Bros., supra, there was no allega- tion of unlawful conduct by Laborers Local 22. In Turner Construction Co., supra, Laborers- Local 22 was not a party and was not alleged to have en- gaged in unlawful conduct in connection with that dispute. Since there is no showing- of a proclivity of the charged party to engage in unlawful conduct to obtain work similar to the disputed work, we find insufficient grounds to issue a broad award, and we limit our determination accordingly. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute: Employees of Anastasi Brothers Corporation, represented by Laborers' International Union of North America, AFL-CIO, Local 22 are entitled to perform the erecting and dismantling of pipe scaffolding at the Charlestown Condominium Project in Charlestown, Massachusetts.