Laborers Massachusetts District Council, Local 22 (Turner Construction)

LABORERS MASSACHUSETTS DISTRICT COUNCIL LOCAL 22 (TURNER CONSTRUCTION) Massachusetts Laborers District Council, Local 22 and Turner Construction Company and Boston District Council of Carpenters , Local 33 Massachusetts Laborers District Council , Local 151 and Turner Company and Boston District Coun- cil of Carpenters, Local 40. Cases 1-CD- 796(1), 1-CD-803(1), and 1-CD-796(2-3) September 29, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charges in this Section 10(k) proceeding were filed March 4 and 15, 1987,1 by Turner Con- struction Company (Turner), alleging that the Re- spondents, Massachusetts Laborers District Coun- cil, Locals 22 and 151, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Turner or its subcontractors to assign certain work to employees it represents rather than to employees represented by Boston District Council of Carpen- ters, Locals 33 and 40. The hearing was held June 8, 1988, before Hearing Officer Ronald S. Cohen. The National Relations Board has delegated 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. 1. JURISDICTION Turner, a New York corporation with an office and place of business in Boston, Massachusetts, is engaged in the construction industry as a general contractor in Massachusetts, where it annually pur- chases and receives goods and supplies valued in excess of $50,000 directly from points located out- side the Commonwealth of Massachusetts. The par- ties stipulate, and we find, that Turner is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Massachusetts Laborers District Council, Locals 22 and 151, and Boston District Council of Carpenters, Locals 33 and 40 are labor organizations within the meaning of Sec- tion 2(5) of the Act. ' All dates refer to 1987 unless specified otherwise II. THE DISPUTE 1077 A. Background and Facts of Dispute Turner is the general contractor at four con- struction jobsites in the greater Boston, Massachu- setts area: Heritage on the Common, the jobsite in- volved in Case 1-CD-796(1); Cambridge Center Three, the jobsite involved in Case 1-CD-796(2); Cambridge Center One, the jobsite involved in Case 1-CD-796(3); and Tent City, the jobsite in- volved in Case 1-CD-803(1). Turner, as a member of the Associated General Contractors of Massa- chusetts (AGC), is a party to an area collective- bargaining agreement with various Carpenter Locals, including Boston District Council of Car- penters, Locals 33 and 40 (Carpenters Local 33 and Local 40). As a member of AGC, Turner is also a party to an area collective-bargaining agreement with various Laborers Locals, including Massachu- setts Laborers District Council, Locals 22 and 151 (Laborers Local 22 and Local 151). Under the provisions of Turner's contracts with Carpenters Locals 33 and 40, Turner is prohibited from subcontracting any work covered by the con- tract to be performed on the jobsite to contractors who are not party to a collective -bargaining agree- ment with the Carpenters.2 At each of the jobsites described above, Turner subcontracted out the work of the erection and dismantling of the pipe scaffolding for masonry work to contractors who were not parties to any contracts with Carpenters Locals 33 or 40. These contractors, D. J. Con- struction Company (D. J. Construction) at the Cambridge Center Three jobsite and Anastasi Brothers Corporation (Anastasi) at the other three jobsites, assigned the erection and dismantling of the pipe scaffolding work to employees who were represented by either Laborers Local 22 or Local 151 pursuant to collective-bargaining agreements which D. J. Construction and Anastasi had with these Laborers Locals. With regard to all four jobsites, after Turner sub- contracted the work to contractors who did not have collective-bargaining agreements with the Carpenters, Turner was notified by Carpenters' representatives that the Carpenters believed that Turner had violated the contract and that if the work in question were not reassigned to the Car- penters, the Carpenters would pursue a contractual grievance and seek monetary damages against Turner. In response to the Carpenters' claims, Turner contacted the Laborers to discuss the Car- 2 The contracts specifically refer to the building, erection, and disman- tling of all scaffolding and staging for all trades as work within the juris- diction of Locals 33 and 40. 296 NLRB No. 137 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD penters'. position. In each case the Laborers re- sponded that they would strike the jobsite if the work was reassigned to the Carpenters.3 B. Work in Dispute The disputed work involves the erection, instal- lation, and dismantling of pipe scaffolding at the Heritage on the Common and Tent City jobsites in Boston, Massachusetts, and the same work at the Cambridge Center One and Cambridge Center Three jobsites in Cambridge, Massachusetts. C. Contentions of the Parties Turner contends that the disputed work should be awarded to employees represented by Laborers Locals 22 and 151 based on the Board's award of similar work in Laborers (O'Connell's Sons), 288 NLRB 53 ( 1988). Carpenters Locals 33 and 40 argue there is no reasonable cause to believe Sec- tion 8(b)(4)(D) of the Act has been violated be- cause the threats made by Laborers Locals 22 and 151 were not genuine. Carpenters Locals 33 and 40 further contend that their contractual grievance is 'i According to the testimony of Donald Denman, project executive for Turner, at the Tent City project Turner subcontracted the pipe scaffold- ing work to Anastasi , who assigned the pipe scaffolding work in question to employees represented by Laborers Local 22 Subsequently , Denman was contacted by Ed Thompson, business representative for Carpenters Local 33, who informed Denman that the Carpenters thought Turner was in violation of the contract At a meeting to discuss the situation, Thompson stated that the Carpenters were going to get money damages, a comment Denman understood to mean that the Carpenters were going to pursue a contractual grievance As a result of the meeting , Denman called Louis Mandarin, , business agent for Laborers Local 22, and told him that the Carpenters were claiming the work in question Mandanm replied that if Turner reassigned the work the Laborers would strike the job At the Cambridge Center One jobsite, Turner subcontracted the work in question to Anastasi , who in turn assigned the work to employees rep- resented by Laborers Local 151 Bob Bryant , business agent for Carpen- ters Local 40, informed Turner that the Carpenters felt Turner was in violation of the contract Subsequently , the Carpenters filed a grievance against Turner seeking monetary damages After Denman learned of the Carpenters' position, he talked with Charlie Bonfigho , business agent for Laborers Local 151 , who informed him that if the work was reassigned he would pull the Laborers off the job On the Cambridge Center Three jobsite, Turner subcontracted the work in question to D J Construction , who assigned the work to em- ployees represented by Laborers Local 151 The Carpenters , through Andy Silins, an official of the Boston District Council of Carpenters, in- formed Turner that they believed Turner was in violation of the contract Again the Carpenters filed a contractual grievance seeking monetary damages against Turner Denman discussed the situation with Bonfigho (the same conversation in which Cambridge Center one was discussed), who said he would pull all the Laborers off the job At the Heritage on the Common jobsite, Turner subcontracted the work in question to Anastasi , who assigned the work to employees repre- sented by Laborers Local 22 Denman received a phone call from Bob Marshall , a business representative for Carpenters Local 33, who stated that Turner was in violation of the contract Again the Carpenters filed a grievance seeking monetary damages against Turner After learning of the Carpenters' claim, Denman contacted Mandarin,, who told him that if the work was reassigned he would pull the Laborers off the job The grievances concerning all four jobsites were consolidated for arbi- tration purposes and were pending at the time of the instant hearing At the time of the hearing , the work in question was essentially completed at all four sites. not a claim for the work and therefore there are no competing claims to the work in this case. Carpen- ters Locals 33 and 40 also claim that Turner cannot invoke Section 10(k) of the Act because , having breached its contract with the Carpenters Locals, it is not an innocent employer caught between two rival unions.4 Carpenters Locals 33 and 40 stipulat- ed, based on prior determinations of disputes, that in the event the Board finds the dispute cognizable, the work will be awarded to employees represent- ed by Laborers Locals 22 and 151. 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, i.e., that there are competing claims to disputed work between rival groups of employees and that there is reasonable cause to believe that at least one party has used proscribed means to enforce its claim. As set forth above, in response to information that Carpenters Locals 33 and 40 claimed that the scaffolding work was subcontracted in violation of their contract, Laborers Locals 22 and 151 threat- ened to strike Turner's jobsites. There is no record evidence supporting the claim of Carpenters Locals 33 and 40 that the threats were collusive and not genuine. Consequently, there is reasonable cause to believe that the Laborers used means proscribed by Section 8(b)(4)(ii)(D) to enforce their claim to the work. Furthermore, we find that there are competing claims to the disputed work . In O'Connell's Sons, above, the Board held that when two different unions have collective-bargaining agreements with an employer arguably covering the work in dispute and one of those unions opts to pursue the work through a contractual grievance , that grievance will be considered a claim to the work for purposes of determining the existence of jurisdiction under Section 10(k).5 Here, two unions have collective- 4 The Carpenters further contend that the charge involving the Tent City jobsite is barred by Sec 10(b) of the Act. Assuming arguendo that an Intervenor may assert a 10(b) defense in a 10 (k) proceeding, we find no merit in the Carpenters' position as we find that the 10(b) defense was not timely raised The Board has held that a 10(b) defense initially raised in a posthearing brief is untimely raised and prejudices the General Coun- sel. Taft Broadcasting Co., 264 NLRB 185, 190 ( 1982). Similarly here, the Carpenters did not raise the issue until they filed their brief to the Board. As the matter was never raised at the hearing, we find the claim not properly before us Turner filed a motion to strike the 10(b) defense and requested leave to submit a reply brief. Turner's motion to strike the 10(b) defense is grant- ed as we find that the 10(b) defense was not timely raised Turner's re- quest for leave to file a reply brief is denied. S See also Iron Workers Local 433 (Crescent Corp.), 277 NLRB 670, 673 (1985), Sheet Metal Workers Local 107 (Lathrop Ca), 276 NLRB 1200, 1202 (1985), Electrical Workers IBEW Local 104 (Standard Sign), 248 NLRB 1144, 1145 (1980). LABORERS MASSACHUSETTS DISTRICT COUNCIL LOCAL 22 (TURNER CONSTRUCTION) 1079 bargaining agreements with Turner . Relying on their contract, Laborers Locals 22 and 151 claim the scaffolding work for the employees they repre- sent. The grievances of Carpenters Locals 33 and 40 also assert that the Carpenters' contract covers the work. Consequently, we conclude that there are competing claims to disputed work between rival groups of employees. We find reasonable cause, therefore, to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed method for volun- tary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find 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 Locals 33 and 40 conceded that if the dispute is properly before the Board, the work would be awarded to employees represented by Laborers Locals 22 and 151, Carpenters Locals 33 and 40 did not present any evidence at the hear- ing regarding the merits of the dispute . The parties, by stipulation, incorporated portions of the record in Laborers Local 223 (Anastasi Bros.), 272 NLRB 860 (1984), into the record of the p- sent case.6 The following factors are relevant in making the determination of the dispute. 1. Certifications and collective-bargaining agreements No party claims there are certifications applica- ble to the work in dispute. Laborers Locals 22 and 151 's agreements with the AGC, to which the general contractor, Turner, and the subcontractors, Anastasi and D. J. Con- struction, are signatory, specifically refer to the work in dispute as laborers' work. Carpenters Locals 33 and 40's agreements with the AGC, to which Turner, but not Anastasi and D. J. Construction, is signatory, refer to the disput- ed work as carpenters' work. The Carpenters' con- 6 The collective-bargaining agreements of these Unions were involved in a factually similar dispute in Anastasi Bros, supra In that case, the Board awarded the disputed work to employees represented by Laborers Local 223. tract, however, also expressly provides that the contractor or subcontractor with the final contract to do the work shall be the entity to make the work assignment . In this case, Anastasi and D. J. Construction have the final contract to perform the scaffolding work and are responsible for the work assignment. Neither Anastasi nor D . J. Construc- tion is signatory to the contract with the Carpen- ters and therefore are under no obligation to award the disputed work to employees represented by Carpenters Locals 33 and 40. Because Laborers Locals 22 and 151 have collec- tive-bargaining agreements with Anastasi and D. J. Construction covering the disputed work and be- cause Carpenters Locals 33 and 40 do not have such contracts with Anastasi and D. J. Construc- tion, we find that this factor favors an award of the disputed work to employees represented by Labor- ers Locals 22 and 151. 2. Company preference and past practice Both Anastasi and D. J. Construction have in the past assigned scaffolding work to employees repre- sented by the Laborers and that practice has con- tinued up to the present. Neither Anastasi nor D. J. Construction has ever assigned the scaffold- ing work to employees represented by a Carpenters union. Accordingly, this factor favors an award to employees represented by Laborers Locals 22 and 151. 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 Locals 22 and 151. 4. 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 and D. J. Construction have been trained to perform scaffolding work and have experience performing the disputed work. The record contains no evidence concerning the Carpenters' members' skills and experience to per- form the disputed work safely. Accordingly, this factor favors an award of the disputed work to em- ployees represented by Laborers Locals 22 and 151. 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5. Economy and efficiency of operations The laborers who were assigned the scaffolding work perform other tasks for Anastasi and D. J. Construction. The laborers unload and deliver to the appropriate spot various masonry materials and supplies, mix mortar and bring it, together with brick supplies, to the brick masons, and perform cleanup details . If the disputed work were assigned to carpenters, they would have no duties beyond the construction of the scaffolding. Thus, Anastasi and D . J. Construction would need to hire two crews to do the work now done with one Labor- ers' crew. Accordingly, economy and efficiency of operation favors awarding the disputed work to employees represented by Laborers Locals 22 and 151. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers Locals 22 and 151 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, relative skills and safety, and economy and efficien- cy of operations. In making this determination , we are awarding the work to employees represented by Laborers Locals 22 and 151, not to those Unions or their members. The determination is limited to the con- troversy that gave rise to this proceeding. Scope of the Award Turner has requested a broad work award cover- ing the entire geographic area encompassed by the Boston District Council of Carpenters ' agreement with Turner. We find such an award inappropriate. Here, the labor organizations-Laborers Locals 22 and 151-which engaged in acts of 8(b)(4)(ii)(D) coercion in order to keep disputed work, are the organizations that represent the employees to whom we are awarding the work and to whom the Employers contemplate continuing to assign the work. Carpenters Locals 33 and 40 have not en- gaged in any acts of coercion, nor have they indi- cated any likelihood of doing so. In circumstances such as these, the Board has declined to give an areawide award . Iron Workers Local 433 (Crescent Corp.), 277 NLRB 670, 675 (1985); Electrical Work- ers IBEW Local 104 (Standard Sign), 248 NLRB 1144, 1147-1148 (1980).7 Accordingly, the award is limited to the four jobsites for which there was evi- dence of competing claims for work.8 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Anastasi Brothers Corporation and D. J. Construction represented by the Massachu- setts Laborers District Council , Locals 22 and 151 are entitled to perform the erection, installation, and dismantling of pipe scaffolding at the Heritage on the Common, Cambridge Center Three, Cam- bridge Center One, and Tent City jobsites. ' Additionally, the award in O'Connell's Sons, supra, on which Turner relies, was limited to a particular project. 8 Chairman Stephens notes that in Carpenters Local 33 (Blount Bros), 289 NLRB 1482 (1988), the Board held that a union's enforcement against a general contractor of a lawful union signatory construction in- dustry subcontracting clause does not constitute unlawful coercion even when the general contractor is sued for contracting out work to a sub- contractor whose own assignment of the work to employees of a differ- ent union has been upheld in a 10(k) award by the Board The Board's award protected the subcontracting employer responsible for assigning the work from future unlawful pressure to assign it to others, but did not permit the award to be used as a means of immunizing a general contrac- tor against suits for its breaches of a lawful contract clause . By contrast, in cases arising outside the construction industry , in which the construc- tion industry proviso to Sec. 8(e) does not privilege such subcontracting clauses, suits against an employer aimed at seeking work in contravention of a 10(k) award can have no reasonable basis or proper motivation, and therefore may constitute coercion within the meaning of Sec 8(b)(4)(ii)(D) See Longshoremen ILWU Local 7 (Georgia-Pacific), 291 NLRB 89 (1988).