Laborers (Albay Construction)

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 989 (N.L.R.B. 1994)

989
314 NLRB No. 162
LABORERS (ALBAY CONSTRUCTION)
Northern California District Council of Laborers,
Laborers’ International Union of North Amer-
ica, AFL–CIO and Albay Construction Com-
pany and United Association of Journeymen
and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Can-
ada, AFL–CIO, Local 342. Case 32–CD–143
August 31, 1994
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The charge in this Section 10(k) proceeding was
filed on November 15, 1993, by Albay Construction
Company (Albay), alleging that the Respondent,
Northern California District Council of Laborers, La-
borers’ International Union of North America, AFL–
CIO (Laborers), violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing Albay Construction
Company to assign work or continue the assignment of
work to employees it represents rather than to employ-
ees represented by United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL–CIO, Local
342 (Plumbers). The hearing was held on January 13,
1994, before Hearing Officer Jo Ellen Marcotte.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the record, the Board makes the fol-
lowing findings.
I. JURISDICTION
Albay, a California corporation, is engaged in the
business of general contracting. During the past 12
months, a representative period, in the course and con-
duct of its business operations, Albay provided serv-
ices at the Tassajara Project in excess of $50,000 di-
rectly to the city of Pleasanton, California, which itself
would meet the Board’s jurisdictional standards, but
for its exempt status. The parties stipulated, and we
find, that Albay is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Laborers and the Plumbers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In June 1992, Albay was awarded a contract for the
underground installation of certain pipe at the
Tassajara Reservoir and Pipeline Project. Albay sub-
contracted all of this work to Antovich Construction
(Antovich). Albay is signatory to collective-bargaining
agreements with both the Laborers and the Plumbers.
Antovich has no agreement with the Plumbers but is
signatory to a collective-bargaining agreement with the
Laborers. Antovich assigned the work to its employees
represented by the Laborers.
Work on the project began sometime in the late
summer or fall of 1992. On April 27, 1993, after the
Laborers had been performing the work in dispute for
several months and were nearing completion of that
work, the Plumbers filed a grievance against Albay, al-
leging that Albay’s subcontracting the work to
Antovich was in violation of the subcontracting provi-
sion of the collective-bargaining agreement between
Albay and the Plumbers. The work performed by the
Laborers (the work in dispute) was completed in late
April or early May 1993. By letter dated June 10,
1993, the Laborers informed Albay that it claimed ju-
risdiction over the completed work in dispute. Subse-
quently, on July 13, 1993, the Plumbers filed a com-
plaint with the U.S. District Court for the Northern
District of California to compel arbitration over its
April 27, 1993 grievance against Albay. On November
15, 1993, Albay filed the instant unfair labor practice
charge alleging that the Laborers had unlawfully
threatened Albay with an object of forcing it to assign
or continue the assignment of the work to the employ-
ees represented by the Laborers. By letter dated No-
vember 24, 1993, the Laborers advised Albay that en-
forcement of its claim for the disputed work would in-
clude strike action. A notice of a 10(k) hearing was
issued on December 30, 1993.
B. Work in Dispute
The disputed work involves the installation of ap-
proximately 8000 lineal feet of 27-inch waterline and
the installation of approximately 3400 lineal feet of
concrete pipe on the Tassajara Reservoir and Pipeline
Project located in Dublin, California.
C. Contentions of the Parties
Albay contends that a jurisdictional dispute exists
under Section 10(k) of the Act. It argues that both the
Plumbers and the Laborers have made competing
claims for the work in dispute and that the Laborers’
threat to strike constitutes unlawful coercion under
Section 8(b)(4)(D). Finally, it maintains that the as-
signment of the work was properly made to the Labor-
ers based on the relevant factors.
The Plumbers contend that no jurisdictional dispute
is properly before the Board. It maintains that its dis-
pute is with Albay’s subcontracting the work to
Antovich allegedly in breach of its collective-bar-
gaining agreement with Albay, a matter that should be
resolved through the contract’s grievance procedure. It
further maintains that Albay did not assign the work
and that the Plumbers has never made a claim for the
work performed by the Laborers, but merely filed a
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is well established that there is reasonable cause to believe that
a violation of Sec. 8(b)(4)(D) has occurred if a labor organization
that represents employees who are assigned the disputed work threat-
ens to strike or otherwise coerces an employer to continue such an
assignment. Laborers Local 731 (Slattery Associates), supra; Labor-
ers District Council (O’Connell’s Sons), 288 NLRB 53 (1988); Sheet
Metal Workers Local 107 (Lathrop Co.), 276 NLRB 1200 (1985);
Carpenters Local 1207 (Carlton Inc.), 313 NLRB 71 (1993).
2 Cf. Operating Engineers Local 3 (Oskins Electric), 308 NLRB
154, 155 (1992) (in which the Board found that the union’s at-
tempted disclaimer of the disputed work was invalid because the
work was 90-percent completed at the time that the disclaimer was
made and, thus, there was nothing left to disclaim).
3 In agreeing with his colleagues that no jurisdictional dispute ex-
ists, Member Devaney relies solely on the fact that, at the time the
Laborers claimed the work and subsequently threatened to strike, the
work had already been completed.
4 We recognize that the Board generally has held that ‘‘completion
of disputed work on a particular job does not moot a jurisdictional
dispute when, as here, there is nothing to indicate that a similar dis-
pute will not arise in the future.’’ Electrical Workers IBEW Local
701 (Federal Street Construction), 306 NLRB 829, 830 (1992); see
also Electrical Workers IBEW Local 581 (National Telephone), 223
NLRB 538, 539 (1976). Here, however, we do not find that the dis-
pute is mooted by the completion of the work; rather we find that
no jurisdictional dispute ever existed within the meaning of Sec.
10(k) because no competing claims were made at any time when the
work existed. By contrast, in the cases in which the Board has found
that a jurisdictional dispute existed and was not mooted despite com-
pletion of the work in dispute, the claims to work and threats to en-
force claims had been made while the work was in progress. A dis-
pute had therefore arisen, even though the work was subsequently
completed at some point in the Board’s processes prior to the 10(k)
hearing.
Member Stephens agrees that Laborers did not make a cognizable
claim for the disputed work and, therefore, finds it unnecessary to
decide whether the Plumbers’ filing and pursuit of its grievance
against Albay would constitute a competing claim for the disputed
work under his position in Laborers Local 731 (Slattery Associates),
supra. Chairman Gould also agrees that the Laborers made no cog-
nizable claim for the disputed work and, therefore, finds it unneces-
sary to address the propriety of the Board’s decision in Laborers
Local 731 (Slattery Associates), supra.
grievance over Albay’s subcontracting the work to
Antovich. Further, the Plumbers argues that the work
at the Tassajara Project was completed long before the
alleged strike threat was made by the Laborers and that
the Laborers could not do anything to enforce the as-
signment of work on the project after such work had
been already completed. Finally, the Plumbers argues
that the notice of 10(k) should be quashed as a matter
of public policy because Albay is simply attempting to
insulate itself from contract damages in the Federal
court action filed by the Plumbers against Albay, rath-
er than to protect itself from competing claims to an
assignment of work. It argues that this misuse of the
Board’s process by Albay is inconsistent with the pur-
poses of the Act, citing then-Chairman Stephens’ dis-
sent in Laborers Local 731 (Slattery Associates), 298
NLRB 787, 790 (1990).
The Laborers argues that a jurisdictional dispute ex-
ists because it must be determined which collective-
bargaining agreement covers the work in dispute. It
further contends that this is not an appropriate issue for
the grievance procedure because jurisdictional disputes
are precluded from arbitration under the contract.
D. Applicability of the Statute
In a 10(k) proceeding, the Board must determine
whether there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred. In the instant
case, this requires a finding that there is reasonable
cause to believe that one or both Unions used pro-
scribed means to enforce their claim and that there are
competing claims to disputed work between rival
groups of employees.
As noted above, the Laborers claimed jurisdiction
over the disputed work approximately 1 month after it
was completed. Approximately 6 months after the
work was completed, the Laborers advised that en-
forcement of this claim would include strike action.
We find that, if there were competing claims for the
work in dispute, this threat to strike would provide rea-
sonable cause to believe that a violation of Section
8(b)(4)(D) occurred.1
In the circumstances here, however, we find that
there were no competing claims to the disputed work,
and thus, that no jurisdictional dispute exists. At the
time that the Laborers made its claim to the work and
its subsequent threat to strike the disputed work al-
ready had been completed. Thus, on June 10, 1993,
when the Laborers advised Albay of its claim to the
work, there was no work left to claim. Consequently,
the Laborers’ claim of jurisdiction over the completed
work was an irrelevant and meaningless gesture, and
the subsequent threat to strike to enforce that claim
was meaningless.2 In addition, we note that the Labor-
ers’ claim and subsequent threat were directed at the
general contractor, Albay, who did not control the as-
signment of the work, and that Antovich, who did, had
assigned the work to its employees who were rep-
resented by the Laborers. In these circumstances, we
find that no bona fide competing claim to the disputed
work was made by the Laborers.3
Based on our findings above, we conclude that there
is no jurisdictional dispute properly before the Board
for determination.4 Accordingly, we shall quash the
notice of hearing in the instant matter.
ORDER
It is ordered that the notice of hearing in this pro-
ceeding is quashed.