Laborers International Union Of North America, Afl-Cio

National Labor Relations Board - Board Decisions

Jun 18, 1990

298 N.L.R.B. 797 (N.L.R.B. 1990)

LABORERS (VERNON CONSTRUCTION) 797
Massachusetts Laborers District Council a/w Labor-
ers International Union of North America,
AFL-CIO and The Boston District Council of
Carpenters Local Union No. 33 of the United
Brotherhood of Carpenters and Joiners of
America and Vernon Construction Company
Cases 1-CD-831(1) and 1-CD-831(2)
June 18, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charges in this 10(k) proceeding were filed
on March 22, 1988, by Vernon Construction Com-
pany (Vernon), alleging in Case 1-CD-831(1) that
Massachusetts Laborers District Council a/w La-
borers International Union of North America,
AFL-CIO (Laborers) and in Case 1-CD-831(2)
that the Boston District Council of Carpenters
Local Union No. 33 of the United Brotherhood of
Carpenters and Joiners of America (Carpenters)
violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity
with an object of forcing Vernon or its subcontrac-
tor to assign certain work to employees represent-
ed by each of those Unions, respectively, rather
than to employees represented by the other respec-
tive Union. The hearing was held May 18, 1988,
before Hearing Officer Gerald Wolper.
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.
1. JURISDICTION
Vernon, a Massachusetts corporation, is engaged
in the construction industry as a general contractor
in Massachusetts, where it annually purchases at its
various sites throughout Massachusetts goods and
supplies valued in excess of $50,000 directly from
points located outside the Commonwealth of Mas-
sachusetts. The parties stipulate, and we find, that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Laborers and Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Vernon is the general contractor for the Harbor
Point project in Boston, Massachusetts, which in-
volves the construction and rehabilitation of ap-
proximately 54 buildings.
On June 27, 1987, Vernon executed a letter of
intent assigning the erection and dismantling of
pipe scaffolding at the Harbor Point project to De-
pendable Masonry (Dependable). Because of the
bonding requirement that had to be met by De-
pendable, the job was divided into three phases.'
Dependable assigned this work to its employees
who were represented by the Laborers.
In January 1987, Vernon and the Carpenters en-
tered into a collective-bargaining agreement.
Vernon was also a party to a collective-bargaining
agreement with the Laborers, effective June 1,
1985, through May 31, 1988.
In April 1987, Dependable began work at the
Harbor Point project. At that time, the Carpenters
filed a grievance under its agreement with Vernon
contending that Vernon violated the subcontract-
ing clause of that agreement by awarding the work
to Dependable, who was a nonsignatory to the
Carpenters' collective-bargaining agreement. The
matter proceeded to arbitration with hearings in
December 1987 and March and May 1988. During
the March hearing, Vernon raised the defense that
it had subcontracted the disputed work to Depend-
able before the time it had entered into the collec-
tive-bargaining agreement with the Carpenters.2
The Carpenters withdrew the grievance concern-
ing phase I of the project because it had been en-
tered into before January 1987 (the date' of the Car-
penters,' agreement with Vernon), but continued to
assert its claim regarding phases II and ' III because
they were allegedly not entered into until after the
effective date of the collective-bargaining agree-
ment.
On March 14, 1988, Paul McNally, business man-
ager for the Laborers, telephoned Vernon's direc-
tor of field operations and stated that if there was a
reassignment of the disputed work to the Carpen-
ters, the Laborers would go on strike.
B. Work in Dispute
The disputed work involves the erection and dis-
mantling of pipe scaffolding at the Harbor Point
project in Boston, Massachusetts.
' Phase I of the job was embodied in a contract signed on November
19, 1986 Contracts for phases II and III were signed on June 22, 1987,
and November 3, 1987, respectively. The phase III contract was signed
by Vernon but not by Dependable
2 Vernon asserted in that proceeding, and asserts here also, that it no
longer had control over the disputed work when it signed the agreement
with the Carpenters It argues that it had entered into one contract with
Dependable, before any agreement with the Carpenters, which covered
the entire job Vernon further contends that the only reason that the job
was divided into three phases was that Dependable could not obtain a
bond for the total amount of $8.6 million Therefore, the job was split
into three smaller phases in order to allow Dependable to obtain a bond.
298 NLRB No. 113
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. Contentions of the Parties
The Carpenters argues there is no reasonable
cause to believe Section 8(b)(4)(D) of the Act has
been violated because the Laborers' threats were
not genuine. The Carpenters further contends that
there are no competing claims for the work be-
cause its contractual grievance is not a claim for
the work. Carpenters also claims that Vernon
cannot invoke Section 10(k) of the Act because,
having breached its contract with Carpenters, it is
not an innocent employer caught between two
rival unions. The Carpenters stipulated that in the
event the Board finds the dispute cognizable, the
work should be awarded to the Laborers.
Vernon contends that there is reasonable cause
to believe that the Laborers violated Section
8(b)(4)(D) because the Laborers' business agent
threatened that the Laborers would go on strike if
the disputed work was assigned to the Carpenters.
Vernon further contends that there is reasonable
cause to believe the Carpenters violated Section
8(b)(4)(D) because it filed a grievance alleging a
violation of the subcontracting clause of its con-
tract with Vernon when the subcontract at issue
predated the Carpenters' agreement. In addition,
Vernon contends that the Carpenters' grievance is
activity proscribed by Section 8(b)(4)(D) because it
is a pursuit of money damages which has the effect
of forcing an employer to make a work assignment
to one group of employees and not to another. Fi-
nally,, Vernon asserts that the disputed work should
be awarded to employees represented by the La-
borers on the bases of Dependable's collective-bar-
gaining agreement with the Laborers, Dependable's
preference and past practice, the area practice,
economy and efficiency of operations, and relative
skills and safety.
The Laborers took no position regarding any
issues.
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. In the
instant case , this requires a finding that there is rea-
sonable cause to believe that a party has used pro-
scribed means to enforce its claim and that there
are competing claims to disputed work between
rival groups of employees.
As noted above, the Laborers threatened to
strike Vernon if the disputed work was assigned to
the Carpenters . There is no record evidence sup-
porting the Carpenters ' claim that the threat was
collusive and not genuine. Accordingly , if there are
competing claims to disputed work between rival
employees, there is reasonable cause to believe that
the Laborers violated Section 8(b)(4)(D).
The Carpenters, relying on Teamsters Local 578
(UFCP-Wesco), 280 NLRB 818 (1986), affd. 827
F.2d 581 (9th Cir. 1987), contends there are no
competing claims because its grievance does not
constitute a claim for the work. We find that case
to be inapposite here. In Teamsters Local 578, the
Board stated that there were "competing claims to
the work," but quashed the notice of hearing be-
cause the real nature of the dispute was work pres-
ervation, and not jurisdictional. In that case the
employer had a contract with only one union and
sought to transfer work out of the unit and subcon-
tract it to another employer. The Board concluded
that the dispute was essentially between the union
and the employer rather than between rival groups
of employees. Here, we have a traditional 10(k) sit-
uation in which two Unions have collective-bar-
gaining agreements with Vernon. Relying on its
contract, the Laborers claims the scaffolding work
for the employees it represents. The Carpenters'
grievance, as it admits, evidences that the Carpen-
ters also asserts its contract covers the scaffolding
work. Thus, we have a traditional jurisdictional
dispute in which two Unions have collective-bar-
gaining agreements and each Union claims its con-
tract covers the same work. Consequently, we con-
clude there are active competing claims to disputed
work between rival groups of employees.3
Based on our findings above, we find reasonable
cause to believe that the Laborers has violated Sec-
tion 8(b)(4)(D)4 and that there exists no agreed-
upon method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the
Act. Accordingly, we find that the dispute is prop-
erly before the Board for determination.
3 See Laborers Local 731 (Slattery Associates), 298 NLRB No 111,
issued this day, and Laborers (O'Connell's Sons), 288 NLRB 53 (1988)
4 If the notice of hearing in this proceeding had issued only against the
Carpenters, we would have quashed it under Longshoremen IL WU Local
7 (Georgia-Pacific), 291 NLRB 89 (1988), which holds that the mere filing
of an arguably meritorious work-assignment grievance before a 10(k) de-
termination by the Board does not constitute "coercion " within the
meaning of Sec 8(b)(4)(u)(D) of the Act In so holding, we do not pass
on the question whether Vernon's letter of intent with Dependable con-
stitutes an agreement concerning all phases of the work such that Vernon
no longer had control over the assignment of the disputed work at the
time it signed an agreement with the Carpenters That question is one of
contract interpretation and the Carpenters' grievance alleging that the
last two phases of the work in dispute are covered by its contract with
Vernon is arguably meritorious As such, under the rationale of Georgia-
Pacific, it cannot be considered to be coercive under Sec 8(b)(4)(D)
Because we would have quashed the notice of hearing had it issued
against the Carpenters alone, we refer the Carpenters ' motion to dismiss
the charge against it in Case 1-CD-831 (2) to the Regional Director who
must take the same action on the charge that would have been required
had the Board quashed the notice of hearing in this proceeding
LABORERS (VERNON CONSTRUCTION)
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 Carpenters has conceded, and the parties
have stipulated, that if the dispute is properly
before the Board, the work should be awarded to
employees represented by Laborers. The Carpen-
ters, therefore, did not present any evidence at the
hearing regarding the merits of the dispute. With
respect to the merits, the parties stipulated that the
evidence presented in Cases 1-CD-713, 1-CD-714,
and 1-CD-715 describes the area and industry
practice of assigning the work in dispute. The
record in those cases, which has been incorporated
into the record here, shows that within the area
and industry, the work of erecting and dismantling
pipe scaffolding routinely has been assigned to the
Laborers. About other relevant factors, it is undis-
puted that Dependable prefers to assign the work
to employees- represented by the Laborers and has
assigned such work to employees represented by
the Laborers for over 20 years; that it is more eco-
nomic and efficient to assign the work to the La-
borers because employees represented by that
Union can not only erect and dismantle pipe scaf-
folding, but also mix mortar and stock the staging;
and that the Laborers possesses the particular skill
of being able to plumb the staging and tie it to the
building, a skill that is necessary to comply with
Occupational Health and Safety Administration re-
quirements. It is therefore clear that the record
supports the parties' stipulation that the disputed
work should be awarded to the Laborers because
the factors of area and industry practice, employer
799
preference and past practice, economy and efficien-
cy, and relative skills and safety favor such an
award. In making this determination, we are
awarding the work to employees represented by
Laborers, not to that Union or its members. The
determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Dependable Masonry represented
by Laborers District Council a/w Laborers Inter-
national Union of North America, AFL-CIO are
entitled to perform the erection and dismantling of
pipe scaffolding at the Harbor point project in
Boston, Massachusetts.
CHAIRMAN STEPHENS, dissenting.
I would quash the notice of hearing in this case.
The only action taken by Carpenters was to file a
grievance over the alleged breach of the union sig-
natory subcontracting clause by Vernon when it
subcontracted work involving the erection and dis-
mantling of scaffolding to Dependable. That griev-
ance was arguably meritorious. For the reasons
stated in my dissent in Laborers Local 731 (Slattery
Associates), 298 NLRB 787, I would not treat this
grievance filing as a competing claim for the work
assigned by Dependable and thus would find no ju-
risdictional dispute.'
' I am aware of Vernon's argument that the grievance had no meet
because, Vernon contends, it had entered into a contract assigning the
work in dispute to Dependable before it entered into the collective-bar-
gaining agreement containing the signatory subcontracting clause Car-
penters, however, argues that the work in dispute was divided into three
phases and that only the first phase had been irrevocably subcontracted
to Dependable when the signatory subcontracting clause came into effect
Carpenters also points out that, as soon as it learned about the earlier
Vernon-Dependable contract, it modified the grievance so as to eliminate
any claim covering the first phase Carpenters may or may not ultimately
prevail on its contractual claim that the second and third phases of the
project were assigned to Dependable in violation of the no-subcontract-
ing clause. Its argument in support of the grievance is, however, at least
arguably meritorious, and I see no reason to allow the 10(k) proceeding
to be interposed as a bar to the litigation of that contractual claim,