La-Borers' International Union Of North America , Afl-Cio

300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Massachusetts Laborers' District Council , a/w La- borers' International Union of North America, AFL-CIO and J. F. White Contracting Compa- ny and International Brotherhood of Electrical Workers, Local 103, AFL-CIO. Case 1-CD- 826 July 29, 1988 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT The charge in this Section 10(k) proceeding was filed January 20, 1988, by J. F. White Contracting Company (White), alleging that the Respondent, Massachusetts Laborers' District Council, a/w La- borers' International Union of North America, AFL-CIO (Laborers' District Council), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing White to assign certain work to employees it represents rather than to employees represented by International Brotherhood of Elec- trical Workers, Local 103, AFL-CIO (Electrical Workers Local 103). The hearing was held Febru- ary 9, 1988, before Hearing Officer Carol A. Sax. 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 White, a Massachusetts corporation, is engaged in a general contracting and construction business at its facility in Newton, Massachusetts, where it annually derives revenues in excess of $50,000 di- rectly from sources located outside the Common- wealth of Massachusetts. The parties stipulate, and we find, that White is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Laborers' District Council and Electrical Workers Local 103 are labor organizations within the meaning of Section 2(5) of the Act. II, THE DISPUTE A. Background and Facts of Dispute White is the general contractor for a track reha- bilitation project for the Massachusetts Bay Transit Authority (MBTA) on mass transit tracks located in one of the underground tunnels. The MBTA contract with White specifies that work on the track renovation project can be performed only be- tween the hours of 9 :30 p.m. and 4:30 a.m . and that passenger service on the line cannot be disrupted by the renovation work. The project involves the upgrading of the track and the installation of con- crete ducts or raceways immediately adjacent to the track to carry electrical cables that later will be pulled through these ducts. Normally, the process of putting down such ducts involves digging a trench, laying an electrical raceway (essentially a metal, fiberglass, or PVC pipe through which elec- trical wiring is eventually pulled), and covering it with raw concrete . This conventional method was rejected for this project because it would be impos- sible for the concrete to dry sufficiently overnight to withstand resumption of regular rail service the next day. White was required to use precast con- crete surrounding cylindrical forms , which will eventually be utilized for power and communica- tion cable adjacent to the track. The precast con- crete is poured and hardened at an offsite manufac- turing plant and transported to the job. White has collective-bargaining agreements with both Laborers' District Council and Electrical Workers Local 103. White assigned all the work of laying the precast conduit to employees represent- ed by Laborers' District Council. On December 3, 1987, business agent for Electri- cal Workers Local 103, Don Berry, sent a letter of grievance to Philip Bonnano , president of White, under the subcontracting clause of the Electrical Workers contract with White, claiming that the work of handling the precast conrete duct was electrical work. After a subsequent conversation between Berry and Bonanno, Bonanno contacted Laborers' District Council Business Manager Paul McNally and informed him of Electrical Workers Local 103's claim to the work. McNally said he would not agree to a reassignment, and that Labor- ers' District Council would go on strike if a reas- signment occurred. On January 15, 1988 , a hearing was held before the joint grievance committee of the National Elec- trical Contractor's Association. The committee found that White was in violation of its agreement by allowing the work to be performed by employ- ees represented by Laborers' District Council and that White should cease and desist from violating the agreement. Laborers' District Council was not bound by this dispute resolution mechanism. About January 18, 1988, Bonanno informed McNally of the award and asked if they could work something out. McNally told Bonanno that if he changed the work assignment, Laborers' Dis- trict Council would not only strike and shut down the instant project, but would also shut down the rest of White's projects in Boston. As of the date 290 NLRB No. 40 LABORERS (WHITE CONTRACTING) of the hearing, White had not changed the work assignment. B. Work in Dispute The disputed work involves the handling and in- stallation of precast enclosures for electrical con- duit (duct banks/electrical raceways) at the Massa- chusetts Bay Transit Authority construction project adjacent to Auditorium Station in Boston, Massachusetts. C. Contentions of the Parties White contends that Laborers' District Council violated Section 8(b)(4)(D) of the Act by its Janu- ary 18, 1988 threat to strike all White's projects. White and Laborers' District Council further con- tends that the disputed work should be awarded to employees represented by Laborers ' District Coun- cil on the basis of their collective -bargaining agree- ment, White's preference and past practice, area practice, economy and efficiency, and relative skills and safety. Electrical Workers Local 103 filed a motion to quash the notice of hearing and dismiss the case, contending that the precast duct banks are electri- cal conduit and that laying electrical conduit is work that should be assigned to employees it repre- sents under the relevant collective-bargaining agreement and under historical practice. It further contends that there is no reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated. Electrical Workers Local 103 contends that a juris- dictional dispute does not exist and that it is simply seeking to enforce the provisions of its collective- bargaining agreement. No party contends that there is an alternative method to voluntarily resolve the dispute that binds all parties. D. Applicability of the Statute In a 10(k) proceeding, the Board must determine whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and whether the parties have agreed on a method for the voluntary adjustment of the dispute. In this case, a finding of "reasonable cause" requires evi- dence that a party has used proscribed means to enforce its claim and that there are competing claims to disputed work between rival groups of employees. It is undisputed that the business agent for La- borers' District Council threatened to shut down all of White's projects in the Boston area if White reassigned the work to employees represented by Electrical Workers Local 103. There is no agreed 301 method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Electrical Workers Local 103 contends there was, in effect, "no threat" because White was going to maintain its "illegal" position in refusing to honor the arbitration award regardless of the threat. Local 103 also contends that there is no tra- ditional jurisdictional dispute , but rather unilateral action by White in assigning the disputed work "to itself and not to its electrical sub-contractor's em- ployees." In support of this contention, Electrical Workers Local 103 cites Teamsters Local 578 (USCP- Wesco), 280 NLRB 818 (1986), affd. 827 F.2d 581 (9th Cir. 1987). We reject Electrical Workers Local 103's con- tention that there was no threat because the alleged threat had no influence on White's assignment of the work. The issue is not the actual effect on an employer's assignment of the work, but rather whether there is reasonable cause to believe that proscribed activity occurred. In this case the threat was clear and unequivocal. We also reject Electrical Workers Local 103's contention that White's assigning the disputed work to its own employees rather than to its elec- trical subcontractor's employees brings this case within the type of situation contemplated in Team- sters Local 578 (USCP- Wesco), supra, and that the notice of hearing should therefore be quashed be- cause the real nature of the dispute is contractual work preservation rather than jurisdictional. In Teamsters Local 578 (USCP- Wesco), 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 em- ployees. By contrast, this case presents a traditional 10(k) situation in which two unions have collec- tive-bargaining agreements with White. Both unions claim that their respective agreements cover the same work. Consequently, we conclude that there are competing claims to the same work be- tween rival groups of employees , and consequent- ly, a traditional jurisdictional dispute. We find that there is reasonable cause to believe that a violation of Section 8(bX4)(D) has occurred, that there exists no agreed method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act, and that Teamsters Local 578 (USCP- Wesco) does not apply to this situation. Accordingly, we find that the dispute is properly before the Board for determination. 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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. Certifications and collective-bargaining agreements No party claims that there are certifications ap- plicable to the work in dispute. The Laborers' District Council's collective-bar- gaining agreement clearly covers the disputed work. The contract lists precast concrete work, trench preparation and backfilling , and the setting of pipes and conduits in trenches as work to be performed by employees represented by Laborers' District Council. Electrical Workers Local 103's collective-bar- gaining agreement speaks only of electrical work. Electrical Workers Local 103 admitted at the hear- ing that the agreement does not cover any of the related carrying, unhooking, trench excavation, and backfilling aspects of the job and, in fact, Electrical Workers Local 103 does not seek the assignment of these portions of the job . Moreover, even if the project were being performed with an ordinary wet concrete pour, the only possible involvement of electrical workers would be to place the conduit into the trench when the concrete was poured. In this instance that specific function of placing the conduit prior to the concrete pour was performed at the offsite precast concrete manufacturing plant and that phase of the process is not in dispute here. Thus, as the work in dispute is not fairly consid- ered electrical, and it is clearly covered by the La- borers' District Council's agreement, we find that this factor of collective-bargaining agreements favors an award of the disputed work to employees represented by Laborers' District Council.' 2. Company preference and past practice The practice of White for at least 20 years has been to assign the work of excavating trenches and the placing of material such as pipe and conduit in ' Member Johansen accepts the grievance committee's interpretation of the contract, finds both contracts cover the work and, therefore, con- cludes that this factor favors neither group trenches to employees represented by Laborers' District Council. Accordingly, this factor favors an award of the disputed work to employees repre- sented by Laborers' District Council., 3. Area practice Testimony presented at the hearing shows that the type of work involved in this dispute is identi- cal to that traditionally assigned by other general contractors in the area to employees represented by Laborers' District Council. Bonanno testified that he knows of no instance in which his competi- tors used anyone but Laborers-represented employ- ees to perform such work and that he often sees his competitors using the very same individuals. Ac- cordingly, this factor favors an award of the dis- puted work to employees represented by Laborers' District Council. 4. Relative skills and safety White is satisfied with the skills demonstrated by the employees represented by Laborers' District Council. Additionally, the work is being performed in a confined area involving the potentially hazard- ous hoisting and unloading of heavy precast con- crete sections. In such a confined area, the unnec- essary presence of two full crews would add to the congestion and to the potential for hazardous con- ditions. White presented testimony that there are hazards involved in the hoisting and setting of these concrete materials; the traditional electrical skills of the employees represented by Electrical Workers Local 103 would have no relevance. Ac- cordingly, this factor favors an award of the dis- puted work to employees represented by Laborers' District Council. 5. Economy and efficiency of operation The operation of bringing the precast materials into the tunnel, digging 100 feet of shallow trench- ing, placing the concrete materials, and backfilling the shallow trench involves no more than 30 to 60 minutes and the disputed part of the operations oc- cupies only a few minutes . If White assigned the placing of the precast ducts to employees repre- sented by Electrical Workers Local 103, White would have to pay them for a whole shift to do a few minutes' work, and White would still require the presence of a crew of employees represented by Laborers' District Council. Under White's present assignment, employees represented by La- borers' District Council perform all aspects of this operation, including the disputed work and per- form other Laborers' tasks upon completion of that operation. Accordingly, economy and efficiency of operation favors awarding the disputed work to LABORERS (WHITE CONTRACTING) 303 employees represented by Laborers' District Coun- cil. its members. The determination is limited to the controversy that gave rise to this proceeding. 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 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of J. F. White Contracting Company represented by Massachusetts Laborers' District Council, a/w Laborers' International Union of North America, AFL-CIO are entitled to perform the handling and installation of precast enclosures for electrical conduit (duct banks/electrical race- ways) at the Massachusetts Bay Transit Authority construction project adjacent to Auditorium Sta- tion in Boston, Massachusetts. 1