Iron Workers Local 197 (Del Guidice Enterprises)

IRON WORKERS LOCAL 197 (DEL GUIDICE ENTERPRISES) 1 United Derrickmen & Riggers Association, Local No 197 of New York, all Long Island, West chester and Vicinity, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Del Guidice Enter prises, Inc Case 29-CD-359-2 September 27 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed December 28 1987 by the Employer Del Guidice Enterprises Inc (Del Guidice) alleging that the Respondent United Derrickmen & Riggers Association Local No 197 of New York all Long Island Westchester and Vicinity International As sociation of Bridge Structural and Ornamental Iron Workers AFL-CIO (Local 197) 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 em ployees represented by Mason Tenders District Council of Greater New York L I U N A AFL- CIO (Mason Tenders) The hearing was held March 2 and 3 1988 before Hearing Officer Eliza beth Orfan 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 The Employer a New Jersey corporation main tains its principal office and place of business at 55 Voorhis Lane Hackensack New Jersey and en gages in the building and construction industry doing masonry waterproofing and roofing work at various construction sites During the past year the Employer purchased and caused to be transported to its construction sites located in New Jersey and New York goods and materials valued in excess of $50 000 which were transported and delivered to the sites in interstate commerce directly from vari ous States of the United States other than the States of New York and New Jersey The parties stipulate and we find that the Employer is en gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 197 and the Mason Tenders are labor organizations within the meaning of Section 2(5) of the Act i II THE DISPUTE A Background and Facts of Dispute Del Guidice was the subcontractor for exterior brick and stone work at the Kol Israel Congrega tion Synagogue site Del Guidice assigned the ma sonry work (i e the actual laying of the stone) to the employees represented by the Bricklayers and assigned the work in dispute (i e the unloading handling rolling moving and setting of stone-re ferred to as tending) to the employees represented by the Mason Tenders Sometime in late June or early July 1987 2 James Cooper the business agent for Local 84 (whose members perform masonry work in tandem with the tending work performed by members of Local 197) and William Jessup the business agent for Local 197 went to the Kol Syn agogue site together There they met Del Guidice s working foreman for the stone work Bob Kehl Kehl testified that Cooper in Jessup s presence and without objection from him told Kehl if you are union I in going to shut you down Kehl then called Del Guidice s director of operations Mi chael lannacone and told him about the threat Cooper who along with Jessup had accompanied Kehl to the telephone got on the phone with Ian nacone and demanded that Locals 84 and 197 members be given the stone work or the job would be shut down At this point Kehl s testimony re veals that Jessup shouted his agreement by stating words to the effect don t waste no time with em just shut em down lannacone then told Kehl to hire employees represented by Locals 84 and 197 but instructed him to get a written agreement stat ing that there were only 2 days of work left on the project for those employees Cooper signed an agreement effectively limiting his claim to the work but Jessup refused to sign the agreement 3 That same day one Local 84 worker and two Local 197 workers were hired and one Bricklayer and one Mason Tender were laid off Approximate ly 2 1/2 days later the Locals 84 and 197 workers were laid off When the remaining stone work was started in August Del Guidice again hired employ ees represented by the Bricklayers and Mason ' The parties also stipulated that Stonesetters Local 84 International Union of Bricklayers and Allied Craftsmen AFL-CIO (Local 84) and District Council of New York City and Long Island International Union of Bricklayers and Allied Craftsmen AFL-CIO (Bricklayers) are labor organizations within the meaning of the Act 2 The testimony is contradictory regarding the exact date when the work was assigned All dates refer to 1987 unless otherwise specified 3 Jessup s testimony shows that he went to the jobsite to get other people off the job and put Local 197 people on it and that at that time he was claiming all the job s stone work 291 NLRB No 1 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Tenders to perform the stone work On August 27 Local 197 served Del Guidice with a notice of in tention to arbitrate alleging failure to comply with the collective bargaining agreement between Del Guidice and Local 197 for the period from January 1 to the time the notice of intention to arbitrate was filed On December 28 Local 197 s attorney sent a letter to lannacone detailing the contractual violation as being Del Guidice s failure to hire four men for 17 weeks work including but not limited to setting lintels and other stone work That same day (December 28) Del Guidice filed its charge al leging that since about June 29 Local 197 has vio lated Section 8(b)(4)(D) of the Act B Work in Dispute The parties stipulated that the disputed work in volves the assignment of all unloading handling, rolling moving and setting of stone at the Kol Israel Congregation Synagogue project located at 2501 Avenue K Brooklyn New York C Contentions of the Parties Local 197 contends that no jurisdictional dispute exists and that the notice of hearing should be quashed because there is no reasonable cause to be lieve Section 8(b)(4)(D) has been violated Local 197 asserts that it has disclaimed any interest in the work and that the only issue left to be resolved is a contractual dispute between it and Del Guidice In the alternative Local 197 claims that the arbitra tion provision of its collective bargaining agree ment provides a method for voluntarily adjusting the dispute Because it contends that there is no ju risdictional dispute Local 197 offered no evidence regarding the award of the work The Employer states that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated based on the threats to shut down the job It claims in this regard that Local 84 Business Agent Cooper acted on behalf of Local 197 in making the threats Further the Employer asserts that the notice of intent to arbitrate was a continu ation of the prior unlawful conduct 4 The Employ er also contends that the alleged disclaimer is in valid as it was offered only after all the work had been completed Finally the Employer claims that its preference past practice and the economy and efficiency of operation favor awarding the work to the Mason Tenders 4 Given our finding infra that the alleged threats establish reasonable cause to believe that an 8(b)(4)(D) violation has occurred we find it un necessary to decide whether the notice of intention to arbitrate constitut ed a continuation of the unlawful conduct D Applicability of the Statute Before the Board may proceed to a determine tion of dispute under Section 10(k) of the Act it must be satisfied there is reasonable cause to be lieve that Section 8(b)(4)(D) has been violated and that the parties have not agreed on a method for the voluntary adjustment of the dispute 5 Regarding Local 197 s assertion that it has dis claimed the work we find that the disclaimer is in effective The purported disclaimer was offered at the start of the hearing in this case after the disput ed work had been completed Where, as here a party seeks to disclaim the disputed work when there is no work left to be disclaimed the Board views the disclaimer as simply an attempt by the party to escape the consequences of its improper actions by avoiding an authoritative decision on the merits 6 Moreover there are additional reasons in this case for refusing to find, as we do that the dis claimer is effective The language of the purported disclaimer specifically reserved to Local 197 its contractual rights against Del Guidice Further aside from the equivocal language of the disclaimer itself Local 197 s pursuit of relief through arbitra tion is inconsistent with its contention that it has disclaimed the work' With respect to the threats to shut down the job we find that there is reasonable cause to believe that Cooper was acting on behalf of both Locals 84 and 197 when he made the threatening statements In this regard, the record shows that Cooper and Jessup rode to the Kol site together and that Kehl testified that Cooper made two threats to shut down the job (one to Kehl and one to Iannacone) 8 In both instances Jessup was present when Cooper made the threats and did not disavow it in either instance 9 Indeed Jessup shouted support for the threat made by Cooper over the telephone to Ian nacone by stating immediately after Cooper made the threat words to the effect don t waste no time with em just shut em down Coopers threat to lannacone specifically stated that employees repre rented by Locals 84 and 197 had to be assigned the S See Operating Engineers Local 925 (Bradshaw Industrial Coatings) 264 NLRB 962 964 (1982) 6 Electrical Workers IBEW Local 3 (Mike G Electric) 279 NLRB 521 523 (1986) ° Sheet Metal Workers Local 107 (Lathrop Co) 276 NLRB 1200 1202 (1985) 8 Although Jessup and Local 197 member Daniel Gorman (who was at the Kol site) denied that Cooper had made any threats such conflicts in testimony do not prevent the Board from proceeding under Sec 10(k) as we are charged only with determining that reasonable cause exists for finding a violation of Sec 8(b)(4)(D) of the Act not that a violation actu ally occurred See Bricklayers Local 44 (Corbetta Construction) 253 NLRB 131 133 (1980) 9 Carpenters Local 102 (Meiswinkel) 260 NLRB 972 974 (1982) IRON WORKERS LOCAL 197 (DEL GUIDICE ENTERPRISES) work Moreover in the context here of the team approach to stone work taken by Locals 84 and 197 (1 e , each union works only witli members of the other union on stone work) and the two locals joint pursuit of that work we find that when one of the two business agents (in this case Cooper) spoke in furtherance of their common objective he spoke for both of them and their respective locals Local 197 also argues that the Board should look to the real nature of a dispute and that such an in query here reveals that this is really a contractual not a jurisdictional, dispute In support of this argu ment Local 197 cites Teamsters Local 578 (USCP Wesco), 280 NLRB 818 (1986), affd 827 F 2d 581 (9th Cir 1987), and Printing Pressmen Local 7 (Met ropolitan Printing Co), 209 NLRB 320 (1974) Unlike the instant case, however, both of those cases involved subcontracting disputes where there was no disagreement among the parties about which union would be entitled to perform the work once the contractual issue concerning sub contracting rights was resolved Thus the Board concluded in USCP Wesco and Metropolitan Print ing that the dispute in each case was essentially be tween an employer and a union (over an alleged contract violation) rather than between rival groups of employees By contrast, this case pre sents a traditional 10(k) situation in which an em ployer having collective bargaining relationships with several labor organizations initially assigned work to one group of employees but then another group of employees claimed the work Consequent ly we conclude that there are competing claims to disputed work between rival groups of employees and, therefore, a traditional jurisdictional dispute Finally Local 197 s claim that the arbitration clause of the collective bargaining agreement be tween it and Del Guidice provides a voluntary method for resolving this dispute is without merit The arbitration clause of that contract does not bind the Mason Tenders and, therefore, no volun tary method of resolving the dispute exists 10 Accordingly as we have found that there is rea sonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed on method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act, we deny Local 197 s motion to quash the notice of hearing and find that the dispute is prop erly before the Board for determination 10 Teamsters Local 952 (Westside Material) 275 NLRB 1001 1004 (1985) (to constitute an agreed-on method for settlement a procedure must bind all parties to the dispute) Nor are the Mason Tenders and Local 197 bound by other provisions of their contracts with Del Guidice to the same forum for the resolution of disputes 3 E Merits of the Dispute Section 10(k) requires the Board to make an of 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 the dispute 1 Collective bargaining agreements When the claim was made for the disputed work, Del Guidice had collective bargaining agreements with Local 19711 and the Mason Tenders 12 among others Provisions of both the Mason Tenders agreement and Local 197 s agreement ar guably cover the disputed work and thus the agreements themselves do not favor either the em ployees represented by Local 197 or those repre sented by the Mason Tenders 2 Employer preference and past practice It was the Employers preference to have the employees represented by the Mason Tenders per form the disputed work The record also shows that it was the Employers past practice to have those employees perform this type of work 13 These factors, then favor an award of the work to that group of employees 3 Economy and efficiency The record reveals that two employees repre sented by Local 197 are to be hired as part of a set ting gang which also includes one mason Indeed two employees represented by Local 197 and one employee represented by Local 84 were hired at the Kol site after the threats to shut down the r I This agreement was effective from July 1 1984 to June 30 1987 Additionally the agreement at art I sec 3 provides for a 30 -day exten sion if no new agreement has been concluded by June 30 1987 (as was the case here) Local 197 and Del Guidice did not enter into a subsequent agreement 11 This agreement was effective from June 1 1984 to May 31 1987 Additionally the Mason Tenders and Del Guidice entered into a subse quent agreement for the period June 1 1987 to May 31 1990 la The record reveals that the Employer used employees represented by the Mason Tenders to perform this type of work on all its prior jobs except the New York Public Library project On that job it used employ ees represented by Local 197 for the tending work and employees repre sented by Local 84 for the masonry work The Employer claims that it did not use employees represented by the Mason Tenders on the New York Library project because of threats similar to those alleged in this case There is no indication that a charge was filed in connection with that project however let alone that the Board found a reasonable basis to believe that an 8(b)(4)(D) violation had occurred 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work were made These employees replaced one employee represented by the Bricklayers and one employee represented by the Mason Tenders As there is no two to one ratio required by the Mason Tenders and as there is no evidence indicating that the two to one ratio is necessary assigning the work to employees represented by the Mason Tenders allows the Employer to tailor the number of employees hired to its needs and to that extent is more economical and efficient Moreover it appears from the testimony of both Jessup (a member of Local 197 for 27 years) and Gorman (a member of Local 197 for 26 years) that employees represented by Local 197 will not per form tending work unless the masonry work is per formed by employees represented by Local 84 Be cause in the instant case Del Guidice had assigned the masonry work to employees represented by the Bricklayers an assignment of the tending work to employees represented by Local 197 could create the potential for disruption that might interfere with the efficiency of the operation In any event even absent this potential for dis ruption the 2 to 1 tender/mason ratio used by Local 197 indicates that the economy and efficien cy of the operation favor awarding the work to employees represented by the Mason Tenders Conclusions After considering all the relevant factors we conclude that the employees represented by the Mason Tenders are entitled to perform the work in dispute We reach this conclusion relying on the factors of employer preference and past practice and economy and efficiency In making this determination we are awarding the work to employees represented by the Mason Tenders not to that Union or its members The de termination 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 1 Employees represented by Mason Tenders District Council of Greater New York L I U N A AFL-CIO are entitled to unload handle roll move and set stone at the Kol Israel Congregation Synagogue site located at 2501 Avenue K Brook lyn New York 2 United Derrickmen & Riggers Association Local No 197 of New York all Long Island Westchester and Vicinity International Association of Bridge Structural and Ornamental Iron Work ers AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Del Gui dice Enterprise Inc to assign the disputed work to employees represented by it 3 Within 10 days from this date United Der nckmen & Riggers Association Local No 197 of New York all Long Island Westchester and Vi cinity International Association of Bridge Struc tural and Ornamental Iron Workers AFL-CIO shall notify the Regional Director for Region 29 in writing whether it will refrain from forcing the Employer by means proscribed by Section 8(b)(4)(D) to assign the disputed work in a manner inconsistent with this determination