Compressed and Open Air Caisson and Subway Workers

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1071 (N.L.R.B. 1977)

COMPRESSED AND OPEN AIR CAISSON AND SUBWAY WKRS.
Compressed and Open Air Caisson and Subway
Workers, Local Union No. 420, affiliated with
Laborers International Union of North America,
AFL-CIO and Contractors Associat:on of Eastern
Pennsylvania and Slattery Associates, Inc. and
Laborers Local 57, affiliated with the Laborers
International Union of North America, AFL-
CIO.1 Case 4-CD-416
August 31, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Contractors Association of
Eastern Pennsylvania, herein called the CAEP,
alleging that Compressed and Open Air Caisson and
Subway Workers, Local Union No. 420, affiliated
with Laborers International Union of North Ameri-
ca, AFL-CIO, herein called Local 420, had violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring Slattery Associates, Inc., herein called the
Employer, to assign certain work to its members
rather than to employees represented by Laborers
Local 57, affiliated with the Laborers International
Union of North America, AFL-CIO, herein called
Local 57.
Pursuant to a notice, a hearing was held before
Hearing Officer Joan F. Homer on March 1, 2, 16,
17, 24, 25, and 29, 1977. All parties appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
briefs were filed by the CAEP and Employer jointly,
by Local 420. and by Local 57.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is a New York corporation engaged in the
heavy and highway construction business as a
general contractor with its principal office and place
of business in New York City. During the past
calendar year, a representative period, the Employer
has purchased goods and materials valued in excess
of $50,000 directly from sources outside of the
Commonwealth of Pennsylvania, which were shipped
across the state lines to its jobsite in Pennsylvania.
During the same period, the Employer performed
services valued in excess of $50,000 for customers
located outside the State of New York. We find the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 57
and Local 420 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer has been engaged as general
contractor for the $7 million "B-64" construction
project in Philadelphia, Pennsylvania. B-64 involves
the renovation of the Frankford Avenue subway
station at 2d and Market Streets and the related
construction of a highway viaduct enabling pedestri-
an traffic to and from the station to cross over
Interstate 95. All parties to the instant jurisdictional
dispute agree that only the subway station renova-
tion phase of B-64 is involved herein.
The Employer's witnesses at the 10(k) hearing
described the B-64 subway project as an "open cut
and cover" construction job. These witnesses ex-
plained the "open cut and cover" procedure as one
involving excavation from ground level to a specific
subsurface grade level, construction or renovation of
a structure at the subsurface level, and reconstruc-
tion of a ground level cover over the finished
subsurface structure. The witnesses also contrasted
open cut and cover procedures to other subterranean
construction methods, i.e., "tunnel" and "caisson"
construction, wherein subsurface structures are built
without substantially disturbing the surface features
above them.
In brief, the particular open cut and cover task to
be performed by the Employer at the B-64 project
site entails: removal of the existing street and roof
over a portion of the 2d and Market Street subway
station platform; excavation of earth from street to
I The caption appears as amended at the heanng.
231 NLRB No. 178
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subway level and demolition of certain existing
walls; extension of passenger platforms and erection
of new walls in an enlarged subway station;
modernization of other existing station features; and
reconstruction of the roof and street surface covering
the station. In performing this work, the Employer
will use employees from numerous crafts, including
dock builders, operating engineers, teamsters, car-
penters, roadsetters, cement finishers, ironworkers,
and laborers.
This proceeding concerns the Employer's assign-
ment of laborers' work on the B-64 subway platform
extension and renovation. Laborers on this job will
render assistance to employees from the aforemen-
tioned crafts and work independently on a variety of
other manual tasks. As a member of the multiem-
ployer CAEP, to which it has assigned its collective-
bargaining rights, the Employer was bound at the
commencement of the B-64 project to hire laborers
in accord with the terms of a collective-bargaining
contract between the CAEP and Laborers' District
Council of the Metropolitan Area of Philadelphia
and Vicinity, herein called the District Council. 2
Both Local 57 and Local 420 are members of the
District Council.
The record indicates that any laborer possessing a
card from the International Union may obtain work
on any job within the District Council's jurisdiction.
However, responsibility for policing laborers' work
on each construction project subject to that jurisdic-
tion is specifically assigned to one of the five District
Council member locals. The Employer therefore
assigned laborers' work on the B-64 subway station
renovation to Local 57. The Employer had previous-
ly given Local 57 jurisdiction over laborers at its B-
53 construction project, which was in progress
adjacent to the B-64 site when work on the latter
began in November 1976. According to extensive
testimony by the Employer's witnesses, B-53 in-
volves open cut and cover procedures which are
nearly identical to those planned for B-64.
Although article II, section 2, of the contract
between the CAEP and the District Council appears
to provide a mechanism whereby any party to the
contract can demand in writing a prejob conference
to discuss jurisdictional problems, it is admitted that
Local 420 did not request a prejob conference with
respect to the B-64 laborers' work assignment and no
such conference was held. Local 420's claim to this
assignment became manifest, however, as the result
of an incident which took place at the jobsite on or
about the morning of November 30, 1976, when
actual construction on the B-64 project was in its
earliest stage.
' The collective-bargaining agreement, which was introduced into
evidence as Local 420's Exh. 17. was due to expire on April 30, 1977. There
The evidence clearly establishes that on the date in
question a group of approximately 10 to 25 individu-
als not employed by the Employer appeared in the
B-64 subway station construction area. Members of
Local 420 and Local 332, another District Council
local, were in this group. They were joined by Fred
McBride, Local 420's business manager. In apparent
reaction to the presence and statements of the
nonemployee group, employees of the Employer,
including laborers, ceased operations in the immedi-
ate vicinity of the 2d and Market Street station,
although work continued elsewhere at the B-64
construction site.
Joseph M. Capogrosse, the Employer's field super-
intendent for both the B-64 and B-53 projects,
testified that he approached the group and spoke
with McBride, who told him, "I'm looking for work
for my people" and "If nothing gets straightened out,
I'm going to have to take this job." According to the
testimony of Nathaniel Thompson, Local 57's shop
steward on the B-64 and B-53 jobs, a discussion
subsequently took place between McBride and
Benjamin Irvin, Local 57's business manager.
Thompson stated that during this discussion Irvin
asked McBride if his men could return to work and
an unidentified member of the group with McBride
responded, "If you do, somebody is going to be
hurt." Irvin corroborated Thompson's testimony to
the extent that he recalled hearing individuals behind
McBride make "remarks such as 'Nobody is going to
work today,' and 'If anyone goes to work today,' you
know, this is going to happen to him and that was
going to happen to them." Irvin further testified that
he told McBride he was being held responsible for
whatever happened on the job. According to both
Thompson and Irvin, McBride neither expressly
accepted responsibility for, nor expressly disavowed,
the actions and words of the men in the group
around him.
In his own testimony concerning events on or
about November 30, 1976, McBride admitted he had
met with a group of men, including members of
Local 420, and discussed the need to resolve the B-
64 laborers issue. McBride denied, however, having
heard any threats while he was present at the 2d and
Market Street construction site or being aware of any
work stoppages at that site. He also testified that he
told both Capogrosso and Irvin he was not closing
the Employer's B-64job down.
John R. Smith, Jr., general manager of the CAEP,
testified that, upon learning of the aforementioned
events at the B-64 construction site, he telephoned
McBride and inquired about the problem which had
arisen. Smith said McBride firmly insisted that "[m ly
is no indication in the record whether the CAEP and District Council
currently have any contractual relationship.
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COMPRESSED AND OPEN AIR CAISSON AND SUBWAY WKRS.
people have a right to work on that job." Smith then
informed McBride that the CAEP would have to file
charges with the National Labor Relations Board
and seek a temporary restraining order. The work
stoppage continued unabated and, pursuant to
Smith's statement of intent, charges were filed with
the Board on December 6, 1976. On the next day, the
CAEP obtained a temporary restraining order
against Local 420. Thereafter, on December 30, 1976,
the temporary restraining order became, with the
consent of all parties, a final order of the United
States District Court for the Eastern District of
Pennsylvania. There is no evidence of work stoppag-
es occurring afterwards at the Employer's B-64 site.
B-64 construction is scheduled to continue until late
1978.
B. The Work in Dispute
The work in dispute involves all work assigned to
laborers on the 2d and Market Street Frankford
Avenue subway station platform extension phase of
the Employer's B-64 construction project in Phila-
delphia. Pennsylvania.
C. Contentions of the Parties
The CAEP and Employer contend that there is
reasonable cause to believe Local 420 has violated
Section 8(b)(4)(D) of the Act, that there is no agreed-
upon method for voluntary resolution of the dispute,
and that the work in dispute should be awarded to
Local 57 on the basis of the Employer's assignment
and past practice, area and industry practice, and
prior jurisdictional awards by the Laborers Interna-
tional hearings panel.
Local 57 contended at the hearing that a voluntary
means for settlement of the work dispute exists, but it
also contends in its posthearing brief that its
members are entitled to perform the work in dispute
on the basis of the same factors cited by the CAEP
and Employer.
Local 420 contends that a Board decision is
unnecessary or would be improper herein because:
(1) there is a voluntary procedure for settling the
jurisdictional dispute; (2) the CAEP has already
procured relief in the form of a permanent injunc-
tion; (3) "there is no effect on the Association, the
moving party, as to which union prevails in this
action"; (4) no work stoppage actually occurred at
the B-64 jobsite; and (5) the appearance of Local
57's counsel in the 10(k) hearing represented a
conflict of interest which prejudiced the position of
Local 420 in this proceeding. If the Board should
:' It Would not be appropriate for the Board to determine in this IO(k)
proceeding whether. as alleged bh Local 420. the appearance of William J.
(Cottrell as coiunsel Iar Local 57 represented a conflict of interest. Based on
decide the jurisdictional dispute, Local 420 claims
the right to perform the disputed work on the basis of
its charter from the International Union and past
practice in the area and industry.
D. Applicability of the Statute
Before the Board may proceed to a determination
of the dispute under Section 10(k) of the Act, it must
be satisfied that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated and that the
parties have not agreed upon a method for the
voluntary adjustment of the dispute.
As previously discussed, there is evidence in the
record that on or about November 30, 1976: (1) the
appearance of Local 420 members and other nonem-
ployees resulted in a work stoppage by employees of
the Employer at part of the B-64 construction site;
(2) Local 420 Business Manager McBride, while in
the company of these nonemployees, demanded for
Local 420 the work assigned by the Employer to
Local 57; (3) unidentified individuals in the group
with McBride voiced threats of violence if Local
420's claim to the disputed work were not honored;
(4) McBride made no apparent effort to disclaim
threats made in his presence; (5) in the wake of these
events, the work in dispute ceased until the issuance
of a temporary restraining order on December 7,
1976. On the basis of this evidence, and without
resolving the issues of credibility raised by the
testimony, we are satisfied that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred.
As members of the District Council, Local 57 and
Local 420 are bound to honor decisions rendered by
the hearings panel of the Laborers International
Union. Neither the Employer nor the CAEP have
consented to being similarly bound, however. It is
therefore clear that there exists no agreed-upon
method for the voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Contrary to Local 420's contentions, it is of no
consequence in our assessment of the propriety of
determining the jurisdictional dispute in this pro-
ceeding that the parties herein have consented to a
permanent judicial injunction with respect to the
work in dispute or that the CAEP will not be
differently affected by an award of this work to Local
420 rather than Local 57. Accordingly, we find that
this dispute is properly before the Board for
determination. 3
our review of the record. we find no indication that Local 420's procedural
or substantive rights have been prejudiced in any way by Cottrell's
participation in this case.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors. 4 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.5
The following factors are relevant in making the
determination of the dispute before us:
I. Board certification and collective-
bargaining agreements
All parties stipulated that the Employer is not
failing to conform to an order or certification of the
Board determining the bargaining representative for
the employees performing the work in dispute.
Article II. section 1, of the collective-bargaining
agreement between the CAEP and the District
Council sets forth its jurisdiction over heavy and
highway construction, thereby clearly establishing its
applicability to the work in dispute. The agreement
does not, however, specify the craft jurisdiction of
local unions who are members of the District
Council. This factor therefore favors neither party to
the jurisdictional dispute.
2. The Employer's assignment and past
practices
The Employer assigned the work in dispute to
employees represented by Local 57. According to
Jerome White, the Employer's vice president, this
assignment was made after consultation with other
Philadelphia area contractors who used Local 57
laborers to perform work similar to the work in
dispute. White also testified that Local 57 had been
previously assigned the task of policing laborers
working on the Employer's B-53 construction job, an
open cut and cover project comparable and adjacent
to the B-64 work in dispute. Local 420 did not
contest Local 57's jurisdiction over the B-53 job. We
find that the Employer's assignment and past
practice favors an award to laborers represented by
local 57.
3. Area and industry practice
Local 420 contends that, as a "sandhog" local its
members have traditionally performed underground
laborers' work in tunnels, caissons, and subways. It
further contends that the work in dispute has been
incorrectly characterized as open cut and cover work
V L. R B v. Radio & Television Broadcast Engineers Union, Local 1212,
Ilntlrniatioinal Brotherhood of Electrical Workers, AFL CIO [Columbia
Br;iad(itiing Snvwei], 364 US. 573 (1961).
rather than subway work. In support of these
contentions, Local 420's business manager, McBride,
testified with respect to prior Philadelphia area jobs
similar to the B-64 subway renovation which Local
420 had policed. McBride's testimony was supple-
mented by three letters from two Philadelphia
construction contractors who attested to Local 420's
jurisdiction over laborers' assignments on subway
construction projects. Neither McBride's testimony
nor the letters, which were introduced as exhibits at
the hearing, referred to any instance in which Local
420 has had jurisdiction since 1967 over work similar
to the work in dispute.
On the other hand, four different witnesses testified
with respect to specific Philadelphia area projects in
which they had been personally involved and to
general practices in both area and industry during
the past decade. They collectively testified that on all
construction jobs similar to the B-64 subway
renovation, which they consistently defined as an
open cut and cover construction project, laborers
performing work similar or identical to the work in
dispute were policed by Local 57.
Based on the entire record, we find that the weight
of the evidence relevant to this factor favors an
award to the employees represented by Local 57.
4. Relative skills, economy, and efficiency of
operation
There are no special skills involved in performing
the work in dispute. Laborers represented by Local
57 and laborers represented by Local 420 are equally
capable of accomplishing the tasks required of them
at the Employer's B-64 site. Furthermore, an award
of the work in dispute to laborers represented by
Local 420 rather than to those represented by Local
57 would have no effect on the economy or efficiency
of the Employer's operation. Accordingly, the factors
of skill, economy, and efficiency do not favor either
party claiming the disputed work assignment.
5. Local union charters and awards by
private union tribunals
Local 420's charter from the Laborers Internation-
al Union establishes its identity as a "Compressed
and Open Air Caisson and Subway Workers" local.
Local 57's charter is addressed to a "Construction
and General Laborers' " local. Neither charter
makes any other reference to the scope of craft
jurisdiction which the respective Locals are autho-
rized to exercise.
s International Association of Machinists, Lodge No 1 743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
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COMPRESSED AND OPEN AIR CAISSON AND SUBWAY WKRS.
Local 420 asserts that its charter vests it with
jurisdiction over subway work, including the B-64
construction job, in the Philadelphia area. However,
Local 57 introduced evidence of three recent deci-
sions rendered by the Hearings Panel of the Laborers
International Union which indicate that the Interna-
tional Union does not share Local 420's interpreta-
tion of its charter authority. The decisions, made in
1968, 1970, and 1974, awarded disputed laborers'
work assignments to Local 57 rather than Local 420.
Witnesses familiar with these disputes testified that
they involved subway-related construction proce-
dures in three Philadelphia area projects similar to
the Employer's B-64job.
Although decisions of the hearing panel are not
binding on our determination of the merits of the
jurisdictional dispute in this 10(k) proceeding, we
find that they are an evidentiary factor herein which
favors Local 57's claim to the disputed work.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees who are
represented by Laborers Local 57, affiliated with the
Laborers International Union of North America,
AFL-CIO, are entitled to the work in dispute. We
reach this conclusion relying on the specific factors
of the Employer's assignment and past practice, area
and industry practice, and past awards by private
union tribunals involving similar jurisdictional dis-
putes between Local 57 and Local 420. In making
this determination, we are awarding the work in
question to employees who are represented by
Laborers Local 57, affiliated with the Laborers
International Union of North America, AFL-CIO,
but not to that Union or its members. The present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Slattery Associates, Inc., who are
represented by Laborers Local 57, affiliated with the
Laborers International Union of North America,
AFL-CIO, are entitled to perform all work assigned
to laborers on the 2d and Market Street Frankford
Avenue subway station platform extension phase of
the Employer's B-64 construction project in Phila-
delphia, Pennsylvania.
2. Compressed and Open Air Caisson and Sub-
way Workers, Local Union No. 420, affiliated with
Laborers International Union of North America,
AFL-CIO, is not by any means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Slattery Associates, Inc., to assign the disputed work
to employees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Compressed and
Open Air Caisson and Subway Workers, Local
Union No. 420, affiliated with Laborers Internation-
al Union of North America, AFL-CIO, shall notify
the Regional Director for Region 4, in writing,
whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above
determination.
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