Laborers' International Union Of North America

LABORERS (O'CONNELL'S SONS) 53 Massachusetts Laborers' District Council a/w La- borers' International Union of North America and Daniel O'Connell's Sons, Inc. and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 40. Case 1- CD-802 March 14, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT The charge in this Section 10(k) proceeding was filed May 4, 1987, 1 by Daniel O'Connell's Sons, Inc. (O'Connell's), alleging that the Respondent, Massachusetts Laborers' District Council a/w La- borers' International Union of North America (La- borers' District • Council), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing O'Connell's or its subcontractor to assign certain work to employees it represents rather than to employees represented by United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 40 (Carpenters Local 40). The hearing was held August 11 before Hearing Officer Joseph F. Griffin. 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. I. JURISDICTION O'Connell's, a Massachusetts corporation, is en- gaged in the construction industry as a general contractor in Massachusetts, where it annually pur- chases at its various sites throughout Massachusetts goods and supplies valued in excess of $50,000 di- rectly from points located outside the Common- wealth of Massachusetts. The parties stipulate, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that Laborers' District Council and Carpenters Local 40 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute O'Connell's is the general contractor for the Thomas Graves Landing Project in Cambridge, , All subsequent dates refer to 1987 unless specified otherwise. Massachusetts. The project involves the erection of an eight-story condominium building. O'Connell's is affiliated with the Associated General Contrac- tors of Massachusetts (AGC). O'Connell's author- ized the AGC to enter into contracts with the La- borers' District Council and the Boston District Council of Carpenters, which includes Carpenters Local 40. O'Connell's engaged a masonry contrac- tor, Anastasi Brothers Corporation (Anastasi), which has a contract with Laborers' District Coun- cil, but not with Carpenters Local 40. Anastasi was responsible for the pipe scaffolding aspect of the project and had laborers perform the scaffolding and the masonry work. On March 9 Carpenters Local 40 sent the AGC a letter stating that O'Connell's had violated its contract by subcontracting the scaffolding work. The letter requested a jobsite conference. When O'Connell's vice president, Patrick Kelliher, re- ceived a copy of the letter, he telephoned Paul McNally, business manager of the Statewide Dis- trict Council of the Laborers' District Council, to discuss Carpenters Local 40's request. McNally stated the laborers would strike the jobsite if the work was reassigned to the carpenters. After being informed that Carpenters Local 40 was pursuing fi- nancial damages under the arbitration clause of their contract, Kelliher again called McNally in April to see if a joint crew might be arranged. McNally stated that a change in work assignment would result in a laborers' strike at the jobsite and probably all O'Connell's jobs in Boston. At the time of the hearing in this case, Carpen- ters Local 40's contractual grievance was being ar- bitrated. B. Work in Dispute The disputed work involves the erection, instal- lation, and dismantling of pipe scaffolding at the Thomas Graves Landing Project in Cambridge, Massachusetts. C. Contentions of the Parties O'Connell's, Anastasi, and Laborers' District Council contend that the disputed work should be awarded to employees represented by Laborers' District Council on the basis of collective-bargain- ing agreements with the general contractor and subcontractor, the subcontractor's preference and past practice, area practice, economy and efficien- cy of operation, and relative skills and safety. Carpenters Local 40 argues there is not reasona- ble cause to believe Section 8(b)(4)(D) of the Act has been violated because Laborers' District Coun- cil's threats were not genuine. Carpenters Local 40 further contends that there are no competing 288 NLRB No. 12 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD claims for the work because: (1) its contractual grievance is not a claim and (2) it issued a disclaim- er of the work. Carpenters Local 40 also claims that O'Connell's cannot invoke Section 10(k) of the Act because, having breached its contract with Carpenters Local 40, it is not an innocent employer caught between two rival unions. Carpenters Local 40 stipulated, based on prior determinations of dis- pute, that in the event the Board finds the dispute cognizable, the work will be awarded to employees represented by Laborers' District Council. D. Applicability of the Statute In a I0(k) proceeding, the Board must determine whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. In the instant case, this requires a finding that there is rea- sonable cause to believe that a party has used pro- scribed means to enforce its claim and that there are competing claims to disputed work between rival groups of employees. As noted above, in response to information that Carpenters Local 40 claimed the work was subcon- tracted in violation of its contract, Laborers' Dis- trict Council threatened on two occasions to strike O'Connell's. There is no record evidence support- ing Carpenters Local 40's claim that the threats were collusive and not genuine. Accordingly, if there are competing claims to disputed work be- tween rival employee groups, there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. Carpenters Local 40 contends there are no com- peting claims because its grievance does not consti- tute a claim for the work. We reject this conten- tion. In Teamsters Local 578 (UFCP-WESCO, Inc.), 280 NLRB 818 (1986), affd. 827 F.2d 581 (9th Cir. 1987), on which Carpenters Local 40 relies, the Board in fact stated that there were "competing claims to the work," but quashed the notice of hearing because the real nature of the dispute was work preservation rather than jurisdictional. In that case the employer, had a contract with only one union and sought to transfer work out of the unit and subcontract it to another employer. The Board concluded that the dispute was essentially between the union and the employer rather than between rival groups of employees. Here, we have a tradi- tional 10(k) situation in which two unions have col- lective-bargaining agreements with O'Connell's. Relying On its contract, Laborers' District Council claims the scaffolding work for the employees it represents. Carpenters Local 40's grievance, as it admits, evidences that Carpenters also asserts its contract covers the scaffolding work. Thus, we have a traditional jurisdictional dispute in which two unions have collective-bargaining agreements and each union claims its contract covers the same work. Consequently, we conclude there are active competing claims to disputed work between rival groups of employees.2 Based on our findings above, we fmd reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for 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. 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 Carpenters Local 40 conceded that if the dispute is properly before the Board, the work would be awarded to employees represented by Laborers' District Counci1, 3 Carpenters Local 40 did not present any evidence at the hearing regard- ing the merits of the dispute. The parties by stipu- lation incorporated portions of the record in Anas- tasi Bros., supra, 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 No party claims there are certifications applica- ble to the work in dispute. Laborers' District Council's agreement with the AGC, to which the general contractor (O'Con- nell's) and the subcontractor (Anastasi) are signato- ry, specifically refers to the work in dispute as la- borers' work. Carpenters Local 40's agreement with the AGC, to which O'Connell's but not Anastasi is signatory, refers to the disputed work as carpenter's work. Carpenters Local 40's contract, however, also ex- pressly provides that the contractor or subcontrac- 2 Carpenters Local 40's grievance also belies its asserted disclaimer of the disputed work. Sheet Metal Workers Local 107 (Lathrop Co.), 276 NLRB 1200, 1202 (1985). 3 The collective-bargaining agreements of these unions were mvolved in a factually similar dispute in Laborers Local 223 (Anastaw Bros.), 272 NLRB 860 (1984) In that case, the Board awarded the disputed work to employees represented by Laborers Local 223. LABORERS (O'CONNELL'S SONS) 55 tor with the final contract to do the, work shall be the entity to make the work assignment. In this case, Anastasi has the final contract to perform the scaffolding work and is responsible for the work assignment. Anastasi is not signatory to Carpenters Local 40's agreement with the AGC and, there- fore, is under no obligation to award the disputed work to employees represented by Carpenters Local 40. See Anastasi Bros., supra. Because Laborers' District Council has a collec- tive-bargaining agreement with Anastasi covering the disputed work, and because Carpenters Local 40 does not have such a contract with Anastasi, we find that this factor favors an award of the disput- ed work to employees represented by Laborers' District Council. 2. The Employer's preference and past practice Anastasi has assigned scaffolding work on this and numerous other construction projects to em- ployees represented by the Laborers. Anastasi has never assigned the scaffolding work to employees represented by a carpenters union. Accordingly, this factor favors an award to employees represent- ed by Laborers' District Council. 3. Area practice Testimony presented at the hearing in Anastasi Bros., supra, and incorporated into the record in this case, shows that it is standard practice for la- borers to erect and dismantle pipe scaffolding in the Boston area. Accordingly, this factor favors an award of the disputed work to employees repre- sented by Laborers' District Council. 4. Economy and efficiency of operation The laborers who were assigned the scaffolding work perform other tasks for Anastasi. The labor- ers unload and deliver to the appropriate spot vari- ous masonry materials and supplies; mix mortar and bring it, together with brick supplies, to the brick masons; and perform cleanup details. If the disput- ed work were assigned to carpenters, they would have no duties beyond the scaffolding. Thus, Anas- tasi would need to hire two crews to do the work now done with one laborer crew. Accordingly, economy and efficiency of operation favors award- ing the disputed work to employees represented by Laborers' District Council. 5. Relative skills and safety The record reveals that the disputed work is per- formed at levels high above the ground. If the work is not properly performed, the employees performing the work and other employees working beneath the scaffolding could be endangered. The laborers hired by Anastasi have years of training and experience performing the disputed work. Car- penters Local 40 presented no evidence concerning its members' skills and experience to perform the disputed work safely. Accordingly, this factor favors an award of the disputed work to employees represented by Laborers' District Council. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers' District Council are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, em- ployer preference and past practice, area practice, economy and efficiency of operation, and relative skills and safety. In making this determination, we are awarding the work to employees represented by Laborers' District Council, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Anastasi Brothers Corporation represented by Massachusetts Laborers' District Council a/w Laborers' International Union of North America are entitled to perform the erec- tion, installation, and dismantling of pipe scaffold- ing at the Thomas Graves Landing Project in Cambridge, Massachusetts.