Laborers' District Council of Western Pennsylvania a/w Laborers' International Union of North America, AFL-CIO (Anjo Construction Co.)

National Labor Relations Board - Board Decisions

Oct 22, 1982

265 N.L.R.B. 186 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' District Council of Western Pennsylvania
a/w Laborers' International Union of North
America, AFL-CIO and Anjo Construction Co.
and Fruin-Colon Contracting Company and Car-
penters District Council of Western Pennsylva-
nia, United Brotherhood of Carpenters and
Joiners of America, Pile Drivers Local Union
No. 2264, AFL-CIO
Laborers' International Union of North America,
Laborers' District Council of Western Pennsyl-
vania, and its Local Union No. 1058, AFL-CIO
and Mergentime Corporation and Carpenters
District Council of Western Pennsylvania,
United Brotherhood of Carpenters and Joiners
of America, Pile Drivers Local Union No. 2264,
AFL-CIO. Cases 6-CD-752, 6-CD-754, and
6-CD-753
October 22, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Anjo Construction Co. (Anjo),
Mergentime Corporation (Mergentime), and Fruin-
Colnon Contracting Company (Fruin-Colnon),
herein collectively called the Employers, alleging
that Laborers' District Council of Western Penn-
sylvania, and its Local Union No. 1058, AFL-CIO,
a/w Laborers International Union of North Amer-
ica, AFL-CIO, herein jointly called the Laborers,
had violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object
of forcing or requiring the Employers to assign
certain work to its members rather than to employ-
ees represented by Carpenters District Council of
Western Pennsylvania, United Brotherhood of Car-
penters and Joiners of America, Pile Drivers Local
Union No. 2264, AFL-CIO, herein called the Pile
Drivers.
Pursuant to notice, a hearing was held before
Hearing Officer Charles H. Saul on May 4, 24, and
25, 1982, and on June 3, 1982. The Employers, the
Laborers, and the Pile Drivers 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. Thereaf-
ter, the Employers, the Laborers, and the Pile
Drivers filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
265 NLRB No. 24
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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated, and we find, that Anjo
Construction Co., a Pennsylvania corporation with
its principal office located in Pittsburgh, Pennsyl-
vania, is engaged in the construction of a subway
in Pittsburgh, Pennsylvania, under a contract by
the Port Authority of Allegheny County. Since the
commencement of these operations on or about
September 30, 1981, until the date of the hearing,
Employer Anjo purchased and received goods and
materials from outside the Commonwealth of Penn-
sylvania valued in excess of $50,000. The parties
stipulated, and we find, that Fruin-Colnon Con-
tracting Company, a Missouri corporation with its
principal office located in St. Louis, Missouri, is
engaged in the construction of a subway in Pitts-
burgh, Pennsylvania, under a contract let by the
Port Authority of Allegheny County. Since the
commencement of these operations on or about
October 1, 1981, until the date of the hearing, Em-
ployer Fruin-Colnon purchased and received goods
and materials from outside the Commonwealth of
Pennsylvania valued in excess of $50,000. Further,
the parties stipulated, and we find, that Mergentime
Corporation, a Delaware corporation with its prin-
cipal office in Flemington, New Jersey, is engaged
in the construction of a subway in Pittsburgh,
Pennsylvania, under a contract let by the Port Au-
thority of Allegheny County. Since the commence-
ment of these operations, on or about November 1,
1981, until the date of the hearing, Mergentime
Corporation purchased and received goods and
materials from outside the Commonwealth of Penn-
sylvania valued in excess of $50,000. The parties
stipulated, and we find, that each of the Employers
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will ef-
fectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the La-
borers' District Council of.Western Pennsylvania
affiliated with Laborers International Union of
North America, AFL-CIO, and Laborers' Interna-
tional Union of North America, Laborers' District
Council of Western Pennsylvania, and its Local
Union No. 1058, AFL-CIO, and Carpenters Dis-
trict Council of Western Pennsylvania, United
186
LABORERS DISTRICT COUNCIL
Brotherhood of Carpenters and Joiners of America,
Pile Drivers Local Union, No. 2264, AFL-CIO,
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
In 1981, based on competitive bids, the Port Au-
thority of Allegheny County (Port Authority)
awarded the Employers separate contracts to per-
form construction work on the downtown Pitts-
burgh, Pennsylvania, subway projects, the first
subway project in the Pittsburgh area.
Anjo Construction Co. contracted to construct a
concrete shell for the Midtown portion of the Pitts-
burgh subway, which is located between Grant
Street and Fifth Avenue, to the county jail wall,
and to do some demolition work, backfilling, and
rebuilding of streets. Anjo began work on the
project in October 1981. In order to build the shell,
Anjo must excavate some 35 to 40 feet below the
street surface, and, to prevent the excavation from
caving in, lagging, i.e., the horizontal placement of
wooden slats between vertical piles, is required.
Mergentime corporation, managing sponsor of a
joint venture with Morrison-Knudsen Associates,
contracted to construct a subway box structure ap-
proximately 35 feet wide and 40 feet deep begin-
ning at Liberty Avenue and Sixth Avenue and pro-
ceeding some 1,900 lineal feet along Liberty
Avenue to the Gateway Center area. Mergentime
began work on the project in mid-February 1982.
The method of construction, which is used with a
supportive excavation and decking system to main-
tain pedestrian and vehicular traffic, is known as
"cut and cover." Lagging is necessary to prevent
the structure from caving in.
Fruin-Colnon Contracting Company contracted
to construct the Wood Street station shell between
Liberty Avenue and Grant Street along Sixth
Avenue. Fruin-Colnon began work on the project
in January 1982. Lagging is necessary to provide
access to the construction site as well as to stabilize
the adjacent soil and prevent it from falling in.
The Employers, all of whom are members of the
Constructors Association of Western Pennsylvania
(Constructors Association), held separate prejob
conferences at which representatives of both the
Laborers and the Pile Drivers were present. Each
Employer assigned the lagging work to employees
represented by the Laborers. The Pile Drivers ob-
jected to the assignment, claiming the lagging oper-
ation, but not claiming the trimming or backfilling
handwork necessary to complete lagging. Howev-
er, no changes in the assignments were made. Sub-
sequently, upon hearing a rumor that the Employ-
ers were considering reassigning the lagging work
to employees represented by the Pile Drivers, on
or about March 29, 1982, the president-business
manager of the Laborers sent a letter to each Em-
ployer stating that if the work assignment were
changed, the Laborers would strike and picket. In
addition, on March 30, 1982, a representative of the
Laborers advised Fruin-Colnon's project superin-
tendent that if the disputed work were assigned to
employees represented by the Pile Drivers, the
Union would take whatever action was necessary
to protect their jurisdiction.
B. The Work in Dispute
The work in dispute involves the unloading,
hooking-on, signaling, handling, installation, and re-
moval of lagging at the Port Authority of Alleghe-
ny County subway construction project in Pitts-
burgh, Pennsylvania.
C. Contentions of the Parties
The Employers contend that there is reasonable
cause to believe that the Laborers has violated Sec-
tion 8(b)(4)(D) of the Act, and that there is no
agreed-upon method for the voluntary adjustment
of the dispute. All the Employers contend that the
work in dispute should be awarded to employees
represented by the Laborers based on the factors of
efficiency and economy of operations, employer
preference and past practice, industry practice, and
relative skill and safety. Fruin-Colnon and Mergen-
time further contend that the work in dispute
should also be awarded to employees represented
by the Laborers on the basis of area practice and
the provisions of the applicable collective-bargain-
ing contracts, and Fruin-Colnon also contends that
the work in dispute should be awarded to the La-
borers on the basis of private awards by national
arbitral tribunals.
The Laborers position, as expressed in its brief, is
in accord with that of the Employers. The Pile
Drivers takes the position that its agreement with
the Constructors Association, and the factor of
area practice, favors an award of the disputed
work to employees represented by it.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to 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 there is no agreed-upon method
for the voluntary adjustment of the dispute. As
noted above, it is uncontroverted that the Laborers
demanded the disputed work and threatened to
strike and picket in support of its demand. Based
187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the foregoing and the record as a whole, we
find that there is reasonable cause to believe that
an object of its conduct was to force or require the
assignment of the work in dispute to employees
represented by it rather.than to employees repre-
sented by the Pile Drivers, and that a violation of
Section 8(b)(4)(D) has occurred.
No party contends, and the record discloses no
evidence showing, that a agreed-upon method for
the voluntary adjustment of this dispute exists to
which all parties are bound. Accordingly, we find
that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
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.' The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.2
The following factors are relevant in making the
determination of the dispute before us:
1. Certification and collective-bargaining
agreements
None of the Unions involved herein has been
certified by the Board as the collective-bargaining
representative for a unit of any of the Employers'
employees. All of the Employers are members of
the Constructors Association which has collective-
bargaining agreements with both the Laborers and
the Pile Drivers. An examination of the Pile Driv-
ers agreement with the Constructors Association,
on which the Pile Drivers, in part, bases its claim
to the disputed work, provides in relevant part:
"The placing, cutting, handling, and removal of all
lagging pertaining to piling used in and for founda-
tions, docks, and wharves shall be the work of the
Pile Driver ... ." The project herein is the build-
ing of a subway which, as amply supported by
record evidence, does not involve a foundation.
An examination of the Laborers agreement with
the Constructors Association discloses that the rec-
ognition of the Laborers extends to all employees
in certain enumerated categories of work, including
"sheeters and shorers." The record discloses that
sheeting and shoring are related to lagging and that
the words "sheeting" and "lagging" are used inter-
changeably in the Employers' contracts with the
Port Authority. We find that the Laborers collec-
N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local
1212. International Brotherhood of Electrical Workers. AFL-CIO (Colum-
bia Broadcasting Systeml, 364 U.S. 573 (1961).
a International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
tive-bargaining agreement with the Constructors
Association is sufficiently broad to include the
work in dispute and, therefore, the factor of a col-
lective-bargaining agreement favors an award of
the disputed work to employees represented by the
Laborers.
2. The Employers' past practice and
preference
Anjo has never before been involved in the con-
struction of a subway. However, in prior projects
where sheeting and shoring were necessary, Anjo
has utilized employees represented by the Laborers
to do the work. Fruin-Colnon has undertaken 17
subway and tunnel projects since 1968. In each of
these projects the lagging work was identical to
the instant case and in each of these projects the
lagging work was assigned to employees represent-
ed by the Laborers. Mergentime has worked on
subway projects similar to the instant project in
Atlanta, Philadelphia, Washington, D.C., and
Boston. Morrison-Knudsen, Mergentime's partner,
has in the instant project also been involved in sim-
ilar subway projects in Washington, D.C., and San
Francisco. In all of these projects, lagging, as in
the instant project, was necessary and all of the
lagging work was performed by laborers. There-
fore, it appears that the disputed work has in the
past been assigned to and performed by employees
represented by the Laborers. While we do not
afford controlling weight to this factor, we find
that it tends to favor the award of the disputed
work to employees represented by the Laborers.
3. Industry and area practice
The Employers and the Laborers presented un-
disputed testimony that the vast majority of lag-
ging work for the construction of subway systems
throughout the country has been performed by em-
ployees represented by the Laborers. The Laborers
also presented testimony that the only decision of
record from the National Joint Board and Impartial
Jurisdictional Disputes Board indicates that lagging
work is to be performed by employees represented
by the Laborers. Accordingly, we find that the
predominant industry practice favors an award of
the disputed work to employees represented by the
Laborers.
The only subway construction project in the
area is the one here. Accordingly, the factor of
area practice is not helpful to our determination.
4. Relative skills and safety considerations
The Employers presented undisputed testimony
that the employers represented by the Laborers
possess the requisite skill to perform the disputed
188
LABORERS DISTRICT COUNCIL
work. The Pile Drivers presented undisputed testi-
mony that employees represented by it also possess
the skills necessary to perform the work in dispute.
We, therefore, find that the factor of relative skills
is not determinative.
Anjo and Mergentime presented testimony that
an award of the disputed work to employees repre-
sented by the Pile drivers would result in the pres-
ence of more employees in the confined area in
which lagging work is performed. They further
presented testimony that the disputed work is per-
formed in areas into which heavy materials are
constantly lowered and the increased number of
employees would increase the likelihood of em-
ployee injuries. Accordingly, we find that the
factor of safety considerations tends to favor an
award of the disputed work to employees repre-
sented by the Laborers.
5. Economy and efficiency of operations
The Employers presented testimony that if pile
drivers were awarded the disputed work it would
still be necessary to employ their present comple-
ment of laborers to perform the trimming and
backfilling of lagging, since such work was not
claimed for employees represented by the Pile
Drivers. The Employers further presented evi-
dence that the assignment of the disputed work to
laborers permits the installation of lagging and per-
formance of the related and integral work of trim-
ming and backfilling the lagging as a continuous
operation. Since the Pile Drivers does not claim
the latter work, an award of the work in dispute to
employees represented by the Pile Drivers would
result in two different crews performing related
work, thereby leaving employees standing idle or
occasioning delays in the completion of the lagging
work. Also, the Pile Drivers agreement with the
Constructors Association unlike the Laborers
agreement requires a minimum crew size. Further,
it is undisputed that the nature of the disputed
work is unskilled and, while laborers are so classi-
fied, pile drivers are classified as skilled workers.
Therefore, if employees represented by the Pile
Drivers were awarded the disputed work it would
result in hiring more employees and using skilled
workers to perform unskilled work. Accordingly,
we find that the factors of economy and efficiency
of operations favor an award of the disputed work
to employees represented by the Laborers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the employees represented by the Labor-
ers are entitled to perform the work in dispute. We
reach this conclusion upon the facts that such as-
signment is consistent with the Constructors Asso-
ciations' current collective-bargaining agreement
with the Laborers; the employees represented by
the Laborers possess the requisite skills to perform
the disputed work and job safety is enhanced by an
assignment of the disputed work to such employ-
ees; such assignment is consistent with predominant
industry practice; such assignment will result in
greater efficiency and economy of operations; and
it is consistent with the Employers' preference. Ac-
cordingly, we shall determine the dispute before us
by awarding the work in dispute to the employees
represented by the Laborers.
In making this determination, we are assigning
the disputed work to employees currently repre-
sented by Laborers' International Union of North
America, Laborers' District Council of Western
Pennsylvania, and its Local Union No. 1058, AFL-
CIO, but not to those unions or their members.
The present determination is limited to the particu-
lar 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 factors and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of Anjo Construction Co., Fruin-
Colnon Contracting Company, and Mergentime
Corporation, who are currently represented by La-
borers' International Union of North America, La-
borers' District Council of Western Pennsylvania,
and its Local Union No. 1058, AFL-CIO, are enti-
tled to perform the unloading, hooking-on, signal-
ing, handling, installation, and removal of lagging
at the Port Authority of Allegheny County subway
construction project in Pittsburgh, Pennsylvania.
189