Laborers Local 223 (Anastasi Brothers.)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers Local 223, Laborers International Union of North America (Anastasi Brothers Corporation), Local Union 33, United Brotherhood of Carpen ters and Joiners of America (Blount Brothers Corporation), and Boston District Council of Carpenters, affiliated with the United Brother hood of Carpenters and Joiners of America, and Local Union 218, United Brotherhood of Car penters and Joiners of America (Volpe Con struction Co, Inc and G J Luchetti, Inc ) and Associated General Contractors of Massachu setts, Inc Cases 1-CD-713 1-CD-714 and 1- CD-715 22 October 1984 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS This IS a consolidated proceeding under Section 10(k) of the National Labor Relations Act follow ing the filing of charges in Case 1-CD-713 on 20 January 1984, amended on 8 February 1984, by As sociated General Contractors of Massachusetts, Inc (AGC) on behalf of Anastasi Brothers Corpo ration (Anastasi), the filing of charges in Case 1- CD-714 on 20 January 1984 by AGC on behalf of one of its member employers, Blount Brothers Cor poration (Blount Brothers), and the filing of charges in Case 1-CD-715 on 8 February 1984, amended on 21 February 1984, by AGC on behalf of another of its member employers, Volpe Con struction Company, Inc (Volpe) It is alleged in Case 1-CD-713 that Laborers Local 223, Laborers International Union of North America (Laborers Local 223), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requinng the involved Em ployer to assign certain work to employees repre sented by it rather than to employees represented by Local Union 33, United Brotherhood of Car penters and Joiners of America (Carpenters Local 33) In Case 1-CD-714, it is alleged that Carpen ters Local 33 also violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employ er therein to assign certain work to employees rep resented by Carpenters rather than to employees represented by Laborers It is alleged in Case 1- CD-715 that Boston District Council of Carpen ters, affiliated with United Brotherhood of Carpen ters and Joiners of America (Boston District Coun cil of Carpenters), and Local Union 218 United Brotherhood of Carpenters and Joiners of America (Carpenters Local 218), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activi ty with an object of forcing or requiring the in volved Employer to assign certain work to em ployees represented by Carpenters rather than to employees represented by Laborers The hearing was held before Hearing Officer Thomas J Flynn on 9 and 30 April and 4 May 1984 All parties appearing at the hearing were af forded full opportunity to be heard, to examine and cross examine witnesses and to adduce evidence bearing on the issues Briefs were filed on behalf of all parties to the proceeding 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 AGC is an association representing employers engaged in construction and related industries Blount Brothers and Volpe are two of its members Blount Brothers, a general contractor incorporated in Delaware, and Volpe a general contractor in Massachusetts, annually received goods, products, and materials valued in excess of $50 000 directly from points located outside the States of Delaware and Massachusetts, respectively Anastasi, a Penn sylvania corporation and G J Luchetti Inc (Lu chetti), a Massachusetts corporation, are both ma sonry subcontractors and receive goods, products, and materials valued in excess of $50,000 directly from points located outside the States of Pennsyl yam, and Massachusetts, respectively The parties stipulate, and we find, that the Employers are en gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Laborers and Car penters are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute 1 Cases 1-CD-713 and 1-CD-714 Blount Brothers is the general contractor for the Lafayette Place project, which involves a major hotel and retail area with approximately 300,000 square feet of retail space and a 600 room hotel lo cated in downtown Boston, Massachusetts Blount Brothers is a member of AGC and has authorized AGC to enter into collective bargaining agree ments with both Carpenters Local 33 and Laborers Local 223 Blount Brothers subcontracted the ma sonry work for the project to the Filloramo Con 272 NLRB No 111 LABORERS LOCAL 223 (ANASTASI BROS ) 861 struction Company (not a party to this case), which was later replaced by Anastasi The masonry sub contract includes the masonry work as well as the erecting of scaffolding for the installation of ma sonry work As the construction project began in mid May 1983, a business agent for Carpenters Local 33 informed Blount Brothers that Carpenters Local 33 claimed jurisdiction over the scaffolding work This claim was later reiterated by a second business agent and the steward for Carpenters Local 33 In June 1983 Filloramo nonetheless as signed the scaffolding work to members of Labor ers Local 223 On 24 August 1983 a business agent and steward for Carpenters Local 33 informed Blount Brothers that employees represented by Carpenters Local 33 would be directed by the business agent to discon tinue working off of the scaffolding because it had been built by members of Laborers Local 223 The employees represented by Carpenters Local 33 ceased working off of the scaffolding that same day and did not resume working until 30 August 1983 at the direction of the Carpenters Internation al representative In November 1983 and January 1984 the general secretary treasurer of Laborers Local 223 advised Blount Brothers that, if the scaf folding assignment were taken away from employ ees represented by Laborers Local 223, he would pull the laborers off the project In addition, Car penters Local 33 is pursuing a claim against Blount Brothers before the American Arbitration Associa tion that Blount Brothers violated its agreement with it by allowing the subcontractor to use labor ers for the scaffolding work rather than carpen ters 1 ' On 24 September 1984 Boston District Council of Carpenters submit ted a letter asking the Board to stay its proceedings pending a ruling by the arbitrator On 27 September 1984 the Charging Party filed in opposi tion Carpenters claimed that in the arbitration hearing which convened on 21 September 1984 the Laborers Union moved to intervene as a full participant and thereby agreed to be bound by the arbitrator s dm sion Carpenters stated that the arbitrator over Carpenters opposition had agreed to take the motion under advisement and to issue his decision before 6 November 1984 Carpenters claim that if the arbitrator permits intervention an agreed on method for the voluntary adjustment of the dispute may exist and Carpenters would then move to reopen the record before the Board to receive evidence of the alleged agreed upon method of voluntary adjustment of the dispute We deny Carpenters request to stay our proceedings The present dis pute is ripe for determination and we perceive nothing in Carpenters letter which should deter our resolution of the dispute While Carpenters claims that there may exist a voluntary adjustment of the dispute if the Laborers Union is permitted to Intervene we note that (1) Carpen ters Itself objects to the intervention (2) Carpenters designation of the Laborers Union as seeking to intervene does not clearly indicate wheth er all the various constituents of the Laborers involved in this proceeding have sought to intervene (3) the arbitration hearing does not appear to cover all of the dispute before the Board but only a portion of It as the dispute at the Malden Massachusetts site (see below) does not appear to be encompassed in the arbitration hearing and (4) Carpenters does not even unequivocally claim that if the Laborers Union is permitted to intervene there will be a method for the voluntary adjustment of the chs 2 Case 1-CD-715 4 The second controversy in this proceeding in volves the Malden Hospital project located in Malden Massachusetts, approximately 15 miles north of Boston On 1 November 1983 Volpe, the general contractor for the project, held a prejob conference attended by representatives of all the contractors and subcontractors involved on the project, as well as representatives from Carpenters Local 218 and Local 22, Laborers International Union of North America (Laborers Local 22) At the conference Volpe, who has used laborers for scaffolding work for the past 52 years, stated that the masonry subcontractor on the project Lu chetti would be assigning the scaffolding work to members of Laborers Local 22 The representative for Carpenters Local 218 first requested that the scaffolding work be reassigned to carpenters, but was advised that Luchetti intended to have the work performed by members of Laborers Local 22 The representative later announced that the busi ness agent would be directed to withhold Carpen ters Local 218 members from working off of the scaffolding if anyone other than carpenters erected the scaffolding Although employees represented by Laborers Local 22 did indeed erect the scaffold ing for this project, Carpenters Local 218 did not engage in an actual work stoppage B Work in Dispute The disputed work involves erecting and disman ding pipe scaffolding for the installation of mason ry work on the Lafayette Place project in Boston, Massachusetts and the Malden Hospital site in Malden, Massachusetts C Contentions of the Parties AGC, representative of the various employers in this proceeding contends that the disputed work was properly awarded to employees represented by Laborers Locals 223 and 22 based on the general contractors and the masonry subcontractors col lective bargaining agreements with Laborers, the Employers preference and past practices, and economy and efficiency of operation In addition, AGC urges that a broad award be made covering the geographic areas encompassed in the Boston District Council of Carpenters agreement with AGC At the hearing, Laborers took a position consistent with that of AGC Carpenters contends that the disputed work should be awarded to em ployees represented by Carpenters Locals 33 and pute but only that such a method may exist In light of the foregoing we deny the request to stay our proceedings 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 218 on the basis of the collective bargaining agree ment between the general contractors and Carpen ters and on the basis of a 1920 decision awarding similar scaffolding work to Carpenters D Applicability of the Statute As noted above Carpenters Local 218 threat ened to strike at the Malden Hospital site (Case 1- CD-715) and Carpenters Local 33 engaged in an actual work stoppage at the Lafayette Place project site (Case 1-CD-714) for the purpose of forcing the Employers to reassign the disputed work to employees represented by Carpenters In addition, Laborers Local 223 threatened to strike at the Lafayette Place project site (Case 1-CD-713) if the disputed work were reassigned to employees represented by Carpenters Local 33 Moreover the parties have stipulated that there exists no agreed upon method for voluntary resolution of this dis pute We therefore find reasonable cause to believe that a violation of 'Section 8(b)(4)(D) has occurred in each case presently before us, and that there exists no agreed upon method of 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 Certifications and collective bargaining agreements There is no evidence that the Board has certified any of the Carpenters or Laborers Unions involved in this dispute as the collective bargaining repre sentative for any of the employees involved herein Both Carpenters and Laborers insist that their col lective bargaining agreements with AGC award ju risdiction over the disputed work to employees represented by their Unions The Laborers agree ment with AGC, to which both the general con tractors (Blount Brothers and Volpe) and the ma sonry subcontractors (Anastasi and Luchetti) are signatory, specifically mentions the scaffolding work under the Laborers Jurisdictional Claims (C P Exh 2 app A , p 24) Erection planking and removal of all scaffolds for lathers, plasterers bricklayers, masons and other construction trades crafts Building planking or installation and removal of all staging, swinging and hanging scaffolds in cluding maintenance thereof In addition, subcontractors Anastasi and Luchetti are signatory to an agreement between the Mason Contractors Association of America Inc and the Laborers International Union of North America which also includes scaffolding work under the La borers jurisdiction (C P Exh 4, art III, p 2) All unloading erecting, dismantling, moving and adjustment of scaffolds The Carpenters agreement with the AGC, to which the general contractors are signatory but the masonry subcontractors are not signatory also specifically mentions scaffolding work under the Carpenters claim of jurisdiction (C P Exh 1 art I, pp 2-3) however the Carpenters agreement also expressly bestows on the contractor the responsibil ity for making the specific assignments The contractor shall make a specific as signment of the work which is included in his contract For instance, if contractor A subcon tracts certain work to contractor B, then con tractor B shall have the responsibility for making the specific assignment for the work included in his contract [C P Exh 1 art III pp 6-7] If this section of the agreement is applied to the in stant case, one may interpret the section as placing the responsibility of awarding the scaffolding work on the masonry subcontractors ( Contractor A would be the general contractors Blount Brothers and Volpe while Contractor B would be the masonry subcontractors Anastasi and Luchetti ) Further as mentioned above the two masonry sub contractors are not signatory to the Carpenters agreement with AGC Consequently, Anastasi and Luchetti were under no contractual obligation to award the disputed work to carpenters Although Carpenters contends that the two gen eral contractors are the employers for determining the work in dispute here, its contention is without merit because the Board has held that the company that ultimately controls and makes the job assign ment shall be deemed the employer See Iron Workers Local 21 (Lueder Construction) 233 NLRB 1139, 1140 (1977) Carpenters Local 895 (George A Fuller Co) 186 NLRB 152, 153 (1970) The mason LABORERS LOCAL 223 (ANASTASI BROS ) 863 ry subcontractors, who assigned the disputed work, are the properly designated employers for purposes of determining an award in this case Consequently, because Laborers has a collective bargaining agree ment with employers Anastasi and Luchetti which indicates the scaffolding work is under the junsdic tion of Laborers, and because Carpenters has no such agreement with the Emi31oyers, we find that this factor favors assignment of the disputed work to the employees represented by Laborers Locals , 22 and 223 2 The Employers preferences and past practices The Employers have assigned the work to em ployees represented by Laborers Locals 22 and 223 Luchetti has assigned laborers scaffolding work at various jobsites for the past 20 years In addition, for the past 9 years, and on over 100 projects, Anastasi has assigned the job of erecting and dismantling scaffolding to laborers Neither Employer has ever assigned scaffolding work to employees represented by Carpenters The assign ment is consistent with longstanding practice by both Employers, and, therefore, this factor favors an award to employees represented, by Laborers Locals 22 and 223 , 3 Area practice The evidence shows that the consistent practice of masonry contractors in the Massachusetts area has been to assign the work of erecting and dis mantling scaffolding to employees represented by Laborers Carpenters contends, however that a decision rendered on 29 April 1920, found in a book dated 1 June 1977, which is a compendium of Agreements and Demons Rendered Affecting the Building In dustry" (the Green Book) establishes that the work in dispute has been historically and tradition ally assigned to employees represented by Carpen ters That decision states Self supporting scaffolding over 14 feet in height or any special design scaffolds or those built for special purposes shall be built by the Carpenters The scaffolding on both projects was over 14 feet in height Carpenters contends further that Blount Brothers acknowledged that it follows this Green Book of decisions as a matter of policy and that this deci mon covers the work in dispute Although at the hearing a Blount Brothers employee did indeed state that, to his knowledge Blount Brothers fol lows the Green Book decisions he also stated that he did not believe Blount Brothers had made any decisions that violated the Green Book This con tradictory testimony by an employee who also added that he did not make all the jurisdictional as signments nor implement the jurisdictional policy for Blount Brothers tends to lessen the impact of the Carpenters contention that Blount Brothers ad mined that it abides by the Green Book In addition, it may well be that the scaffolding referred to in the 1920 decision is wood scaffold mg not pipe scaffolding which was not invented until the 1930 s Nevertheless despite the fact that this decision may not be applicable to this dispute due to the difference in scaffolding materials, the decision is a factor that may be considered for pur poses of determining the dispute The Board has held that, in cases in which a court or other deci mon making body has made an award of disputed work that award may be considered in determin mg the proper assignment of the dispute but that award is not the determining factor of the dispute Iron Workers Local 21, supra Carpenters also asserts that Laborers Local 223 conceded that the work in dispute was properly the work of Carpenters Local 33 members because the scaffolding was over 14 feet in height This ad mission did not come from a representative of La borers Local 223 at the hearing, rather, it came from the testimony of a Blount Brothers employee Moreover, the fact that Laborers Local 223 threat ened to strike if the work in dispute were reas signed to Carpenters Local 33 members tends to di minish the significance of this testimony In view of the fact that area practice is to assign scaffolding work to laborers despite the Green Book decision, this decision shall not be given con trolling weight Therefore this factor favors an award to employees represented by Laborers Locals 22 and 223 2 4 Economy and efficiency of operations In addition to the erection and dismantling of pipe scaffolding laborers perform other tasks in volving masonry construction These other tasks consist of (1) manually unloading various materials involved in masonry work such as cement lime, 2 Were Chairman Dotson and Member Hunter to consider the Green Book decision a separate factor apart from area practice they would nonetheless reach the same ultimate conclusion that the work in dispute should properly be awarded to employees represented by Laborers Locals 22 and 223 Member Dennis agrees that the area practice factor favors awarding the disputed work to employees the Laborers Locals represent Although she would find the Green Book decision is a separate factor favoring awarding the work to Carpenters represented employees she believes the factors favoring awarding the work to Laborers repre sented employees outweigh the factor favoring Carpenters represented employees 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tools (2) carrying these materials to a stockpile area (3) mixing the mortar to be used in the ma sonry work (4) tending the bricklayers who actual ly install the masonry work (5) cleaning up the masonry areas and (6) removing construction ma terials from the construction site The actual erec non and dismantling of the scaffolding takes only a few minutes If the disputed work were assigned to employees represented by Carpenters Locals 33 and 218, the same number of laborers would still be necessary to complete the other tasks The consid erations of economy and efficiency thus favor an assignment of the work in dispute to employees represented by Laborers Locals 22 and 223 Conclusions After considering all the relevant factors we conclude that employees represented by Laborers Locals 22 and 223 are entitled to perform the work in dispute We reach this conclusion relying on the collective bargaining agreement between the Em ployers and Laborers the Employers preferences and past practices, area practice, and economy and efficiency of operations In making this determina tion we are awarding the work to employees rep resented by Laborers Locals 22 and 223, not to the Unions or their members Scope of Award - AGC requests that the Board issue a broad work award covering the geographic areas encompassed in the Boston District Council of Carpenters agree rnent with AGC This area includes more than 10 cities located in eastern Massachusetts AGC con tends that such an award is necessary in order to avoid repetition of similar jurisdictional claims and attendant work stoppages at construction sites within this area In this regard, AGC refers, inter aim, to a Board decision issued in 1969 which awarded similar work to laborers rather than car penters We note that there has been only one inci dent of actual work stoppage by Carpenters Local 33 and one threat of strike by Carpenters Local 218 in this entire geographic area Moreover, although AGC presented evidence of Carpenters requesting similar work on other projects there is no evi dence showing reasonable cause to believe that Carpenters have thus far committed any other 8(b)(4)(D) violations in pursuit of such scaffolding work Under these circumstances and considering that the Board s earlier decision was issued 15 years ago, we find that the evidence does not dem onstrate a proclivity of Carpenters to engage in further unlawful conduct with attendant work interruptions at other jobsites involving other em ployers unless a broad award is made here Ac cordingly we conclude that the issuance of a broad award is inappropriate in this proceeding The determination is therefore limited to the par ticular controversies that gave rise to this proceed ing DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 Employees of Anastasi Brothers Corporation and G J Luchetti Inc represented by Laborers Locals 22 and 223, Laborers International Union of North America, are entitled to perform the work of erecting and dismantling pipe scaffolding for the installation of masonry work on the Lafayette Place project in Boston, Massachusetts, and the Malden Hospital site in Malden, Massachusetts 2 Local Unions 33 and 218 United Brotherhood of Carpenters and Joiners of America, and Boston District Council of Carpenters affiliated with the United Brotherhood of Carpenters and Joiners of America, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Anastasi Brothers Corporation, G J Luchetti Inc Blount Brothers Corporation and Volpe Construction Co Inc to assign the disputed work to employees rep resented by them 3 Within 10 days from this date, Local Unions 33 and 218, United Brotherhood of Carpenters and Joiners of America and Boston District Council of Carpenters,' affiliated with United Brotherhood of Carpenters and Joiners of America shall notify the Regional Director for Region 1 in writing whether they 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