Laborers' International Union Of North America, Afl-Cio, Local 104

692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, AFL-CIO, Local 104 and ACMAT Corporation and Sheet Metal Workers' International Asso- ciation, AFL-CIO, and its Local 28. Case 2- CD-760 June 15, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed on September 13, 1988, by ACMAT Corpora- tion (the Employer), alleging that the Respondent, Laborers' International Union of North America, AFL-CIO, Local 104 (the Laborers), violated Sec- tion 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 employees represented by Sheet Metal Workers' International Association, AFL-CIO, Local 28 (Sheet Metal Workers Local 28). The hearing was held on No- vember 17, 23, 28, and 30, and December 6, 8, and 14, 1988, before Hearing Officer Stephen Berger. 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 ACMAT Corporation in engaged in the business of asbestos abatement throughout the United States, including New York City. It annually de- rives gross revenue in excess of $500,000 and pur- chases and receives equipment and materials valued in excess of $50,000 from suppliers located outside the State of New York. 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 the Laborers and the Sheet Metal Workers are labor organizations within the meaning of Section 2(5) of the Act. 11. THE DISPUTE A. Background and Facts of Dispute The Employer has been an interior contractor for approximately 40 years. Part of its business in- volved the installation of asbestos insulation. About 13 years ago, as the latent dangers associated with asbestos began to come to light, the Employer became involved in the removal, or abatement, of asbestos. In the last few years, asbestos abatement has made up over 90 percent of the Employer's business. The Employer had collective-bargaining agree- ments with most of the building trade unions throughout its history. When it started in the asbes- tos abatement field, it used employees represented by these unions on its projects. However, this ar- rangement was not satisfactory to the Employer because it created disputes over which trade was entitled to perform a specific task. In turn, these disputes resulted in production delays, cost over- runs, and friction among employees represented by the various unions. In order to compete more effectively, the Em- ployer decided to use one group of workers who would be trained in all phases of the asbestos abate- ment process. The Employer learned that the Sheet Metal Workers had begun a training program de- signed to give its members comprehensive training in all phases of asbestos abatement . The Employer visited the training center and was convinced that the Sheet Metal Workers could provide it with the skilled workers it needed. Therefore, in late 1986 and early 1987, the Employer informed all the other unions it had collective-bargaining agree- ments with, including the Laborers, that it would not renew those agreements when they expired. The Employer and the Sheet Metal Workers exe- cuted a nationwide agreement in December 1987, covering all asbestos abatement work engaged in by the Employer. In August 1988, the Employer successfully bid on a job involving the removal of asbestos from the Prudential Insurance Company offices on the sixth and eighth floors of the Pan Am Building in New York City. The project commenced on August 29 or 30, 1988. On September 6, 1988, a representative of the Laborers came to the site and asserted the work should be done by laborers rather than sheet metal workers. He also threat- ened to bring 15 other laborers to the site the fol- lowing day. On September 7, 1988, a laborer ap- peared at the site and demanded to be placed on the Employer's payroll as a union steward. The Employer refused . On September 8, 1988, the man- aging agent for Prudential told the Employer to cease work at the site until the work dispute was settled because the Laborers was threatening to take its members off other jobs in the building. The Employer resumed work on October 19, 1988, but that afternoon another representative of the Laborers came to the site and demanded to be put on the payroll as a union steward. The Em- ployer again refused and the laborer left. Pruden- tial's managing agent appeared a few minutes later 295 NLRB No. 72 LABORERS LOCAL 104 (ACMAT CORP.) and ordered the Employer's workers off the site. It was later explained to the Employer that the man- aging agent did not want "any more trouble." The Employer had not been able to complete the work at the time of the hearing. B. Work in Dispute' The work in dispute involves the removal of as- bestos from the sixth and eighth floors of the Pan Am Building in New York City. C. Contentions of the Parties The Employer and the Sheet Metal Workers contended that the work in dispute should be awarded to employees represented by Sheet Metal Workers Local 28 on the basis of a collective-bar- gaining agreement, relative skills and training, past practice, economy and efficiency of operations, and employer preference. The Laborers contends that the work in dispute should be awarded to it on the basis of area and in- dustry practice, the award of a joint board, relative skills and experience, economy and efficiency of operations, and past practice. It also asserts that the collective-bargaining agreement between the Em- ployer and the Sheet Metal Workers creates a con- flict of interest and cannot support an award of the work in dispute to employees represented by Sheet Metal Workers Local 28. D. Applicability of the Statute Witnesses for the Employer testified that on Sep- tember 6 and 7 and October 19, 1988 , representa- tives of the Laborers came to the site and made claims for the work . On September 6, 1988 , in con- nection with the claim for the work, a Laborers representative threatened to bring more laborers to the site. As a result of a Laborers threat to remove its members from other jobs in the Pan Am build- ing, the Prudential Insurance Company's managing agent ordered the Employer to cease performing the work in dispute until the jurisdictional dispute was settled. We find there is reasonable cause to believe that an object of the Laborers' conduct described above was to force or require the Employer to assign the work in dispute to employees represented by the Laborers rather than to employees represented by Sheet Metal Workers Local 28. i We deny the Laborers' motion to quash the notice of hearing on the grounds that there was no work in dispute being performed at the time the Laborers claimed the work . The Laborers' attempt to make distinc- tions within the work in dispute is without merit It is clear from the record that the argument attempts to redefine the work into two catego- ries that are not separable (i e., "demolition and asbestos removal"). Fur- ther, it is clear from the record that the Laborers did not claim only the demolition, as asserted in its brief, but also claim all the work in dispute. 693 No party claims there is an agreed-upon method for the voluntary adjustment of this dispute. 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. Employer preference and past practice The Laborers contends that prior to October 1987, the Employer used employees represented by the Laborers, not the Sheet Metal Workers, to per- form asbestos abatement work. However, since that time the Employer has used only employees repre- sented by the Sheet Metal Workers on over 100 as- bestos abatement jobs and, satisfied with their per- formance, prefers that the work in dispute be done by employees who are represented by Sheet Metal Workers Local 28. This factor favors awarding the work in dispute to employees represented by Sheet Metal Workers Local 28.2 a As noted above, the Employer and the Sheet Metal Workers contend that the collective-bargaining agreement between them favors award of the work in dispute to employees represented by Sheet Metal Workers Local 28. The Laborers contends that the Sheet Metal Workers cannot represent the Employer's employees based on an offer of proof purport- ing to establish that the Sheet Metal Workers is disabled from represent- ing the Employer's employees due to the Sheet Metal Workers pension fund's 30 percent ownership interest in the Employer's business. The issue in this proceeding is the identity of the employees entitled to per- form the work, not the identity of their representative There are unfair labor practice charges currently pending concerning the legality of the agreement between the Employer and the Sheet Metal Workers . Accord- ingly, and because other factors exist that favor an award of the disputed work to employees represented by Sheet Metal Workers Local 28, we find it unnecessary to consider the agreement in determining the merits of the jurisdictional dispute in this proceeding . See Longshoremen ILA Local 1332 (Trailer Marine), 264 NLRB 319, 321 fn 7 (1982). Given this find- ing, we believe it is unnecessary to reopen the record to permit the La- borers to introduce evidence pertaining to the offer of proof. 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Economy and efficiency of operations The Employer contends that prior to October 1987, it had to use a "hodge podge" of crews made up of employees represented by various unions be- cause no one trade was qualified or willing to do all the work. This resulted in work disputes, pro- duction delays, increased labor costs, and friction between employees represented by the various unions at the jobs. However, the employees repre- sented by Sheet Metal Workers Local 28 have, since October 1987, been able and willing to do all phases of the asbestos abatement process, except electrical work. This factor favors awarding the work in dispute to employees represented by Sheet Metal Workers Local 28. 3. Area practice3 The evidence shows that employees represented by both the Sheet Metal Workers and the Laborers perform asbestos abatement work in the New York City area. This factor does not favor awarding the work in dispute to a particular group of employees. 4. Relative skills and training The evidence shows that employees represented by both unions possess the requisite skills and train- ing to perform the work in dispute. This factor does not favor awarding the work in dispute to a particular group of employees. 5. Certifications by the Board There are no certifications by the Board. This factor does not favor awarding the work in dispute to a particular group of employees. 6. Awards of joint boards The Laborers argues that the Board should rely on a 1980 Impartial Jurisdictional Disputes Board (IJDB) decision involving several unions including the Sheet Metal Workers International and the La- borers International . The Employer, however, was not a party to that decision . Moreover, that deci- sion predates the changed circumstances pertaining to asbestos removal that the record evidences. Under these circumstances, we accord the IJDB decision little weight. 8 The Laborers urges the Board to reopen the record to permit it to show industry practice nationwide. Based on facts on this case, we con- clude that, even accepting the Laborers' assertions concerning nationwide practice as true, such evidence would not affect our determination We therefore reject the request to reopen the record. Conclusions After considering all the relevant factors, we conclude that the employees represented by the Sheet Metal Workers' International Association, AFL-CIO, Local 28, are entitled to perform the work in dispute . We reach this conclusion relying on employer preference and past practice, and economy and efficiency of operations . In making this determination, we are awarding the work in dispute to employees represented by Sheet Metal Workers Local 28, not to that Union or its mem- bers. Scope of the Award The Sheet Metal Workers contends that the scope of the award should be broad enough to in- clude all asbestos abatement jobs engaged in by the Employer throughout the five boroughs of New York City. Generally, in order to support a broad, areawide award, there must be evidence that the disputed work has been a continuing source of con- troversy in the relevant geographic area, that simi- lar disputes are likely to recur, and that the charged party has a proclivity to engage in unlaw- ful conduct to obtain work similar to the disputed work. Electrical Workers IBEW Local 104 (Stand- ard Sign), 248 NLRB 1144, 1148 (1980). We do not believe the record supports a broad award. Ac- cordingly, our determination is limited to the con- troversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of ACMAT Corporation repre- sented by the Sheet Metal Workers' International Association, AFL-CIO, Local 28 are entitled to perform the removal of asbestos from the sixth and eighth floors of the Pan Am Building in New York City. 2. Laborers' International Union of North Amer- ica, AFL-CIO, Local 104 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force ACMAT Corporation to assign the work in dispute to employees represented by it. 3. Within 10 days from this date, Laborers' Inter- national Union of North America, AFL-CIO, Local 104 shall notify the Regional Director for Region 2 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with this determination.