Laborers' International Union Of North America, Afl-Cio, Local 104

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 692 (N.L.R.B. 1989)

692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
AFL-CIO, Local 104 and ACMAT Corporation
and Sheet Metal Workers' International Asso-
ciation, AFL-CIO, and its Local 28 . Case 2-
CD-760
June 15, 1989
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed on September 13, 1988, by ACMAT Corpora-
tion (the Employer), alleging that the Respondent,
Laborers' International Union of North America,
AFL-CIO, Local 104 (the Laborers), violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object
of forcing the Employer to assign certain work to
employees it represents rather than to employees
represented by Sheet Metal Workers' International
Association, AFL-CIO, Local 28 (Sheet Metal
Workers Local 28). The hearing was held on No-
vember 17, 23, 28, and 30, and December 6, 8, and
14, 1988, before Hearing Officer Stephen Berger.
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
ACMAT Corporation in engaged in the business
of asbestos abatement throughout the United
States, including New York City. It annually de-
rives gross revenue in excess of $500,000 and pur-
chases and receives equipment and materials valued
in excess of $50 ,000 from suppliers located outside
the State of New York. The parties stipulate, and
we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that the Laborers and the Sheet
Metal Workers are labor organizations within the
meaning of Section 2(5) of the Act.
11. THE DISPUTE
A. Background and Facts of Dispute
The Employer has been an interior contractor
for approximately 40 years . Part of its business in-
volved the installation of asbestos insulation. About
13 years ago, as the latent dangers associated with
asbestos began to come to light, the Employer
became involved in the removal, or abatement, of
asbestos . In the last few years, asbestos abatement
has made up over 90 percent of the Employer's
business.
The Employer had collective-bargaining agree-
ments with most of the building trade unions
throughout its history. When it started in the asbes-
tos abatement field, it used employees represented
by these unions on its projects. However, this ar-
rangement was not satisfactory to the Employer
because it created disputes over which trade was
entitled to perform a specific task. In turn, these
disputes resulted in production delays, cost over-
runs, and friction among employees represented by
the various unions.
In order to compete more effectively, the Em-
ployer decided to use one group of workers who
would be trained in all phases of the asbestos abate-
ment process. The Employer learned that the Sheet
Metal Workers had begun a training program de-
signed to give its members comprehensive training
in all phases of asbestos abatement . The Employer
visited the training center and was convinced that
the Sheet Metal Workers could provide it with the
skilled workers it needed. Therefore, in late 1986
and early 1987, the Employer informed all the
other unions it had collective-bargaining agree-
ments with, including the Laborers, that it would
not renew those agreements when they expired.
The Employer and the Sheet Metal Workers exe-
cuted a nationwide agreement in December 1987,
covering all asbestos abatement work engaged in
by the Employer.
In August 1988, the Employer successfully bid
on a job involving the removal of asbestos from
the Prudential Insurance Company offices on the
sixth and eighth floors of the Pan Am Building in
New York City. The project commenced on
August 29 or 30, 1988. On September 6, 1988, a
representative of the Laborers came to the site and
asserted the work should be done by laborers
rather than sheet metal workers. He also threat-
ened to bring 15 other laborers to the site the fol-
lowing day. On September 7, 1988, a laborer ap-
peared at the site and demanded to be placed on
the Employer's payroll as a union steward. The
Employer refused . On September 8, 1988, the man-
aging agent for Prudential told the Employer to
cease work at the site until the work dispute was
settled because the Laborers was threatening to
take its members off other jobs in the building.
The Employer resumed work on October 19,
1988, but that afternoon another representative of
the Laborers came to the site and demanded to be
put on the payroll as a union steward. The Em-
ployer again refused and the laborer left. Pruden-
tial's managing agent appeared a few minutes later
295 NLRB No. 72
LABORERS LOCAL 104 (ACMAT CORP.)
and ordered the Employer's workers off the site. It
was later explained to the Employer that the man-
aging agent did not want "any more trouble." The
Employer had not been able to complete the work
at the time of the hearing.
B. Work in Dispute'
The work in dispute involves the removal of as-
bestos from the sixth and eighth floors of the Pan
Am Building in New York City.
C. Contentions of the Parties
The Employer and the Sheet Metal Workers
contended that the work in dispute should be
awarded to employees represented by Sheet Metal
Workers Local 28 on the basis of a collective-bar-
gaining agreement , relative skills and training, past
practice, economy and efficiency of operations, and
employer preference.
The Laborers contends that the work in dispute
should be awarded to it on the basis of area and in-
dustry practice, the award of a joint board, relative
skills and experience, economy and efficiency of
operations, and past practice . It also asserts that the
collective-bargaining agreement between the Em-
ployer and the Sheet Metal Workers creates a con-
flict of interest and cannot support an award of the
work in dispute to employees represented by Sheet
Metal Workers Local 28.
D. Applicability of the Statute
Witnesses for the Employer testified that on Sep-
tember 6 and 7 and October 19, 1988 , representa-
tives of the Laborers came to the site and made
claims for the work . On September 6, 1988 , in con-
nection with the claim for the work , a Laborers
representative threatened to bring more laborers to
the site . As a result of a Laborers threat to remove
its members from other jobs in the Pan Am build-
ing, the Prudential Insurance Company's managing
agent ordered the Employer to cease performing
the work in dispute until the jurisdictional dispute
was settled.
We find there is reasonable cause to believe that
an object of the Laborers ' conduct described above
was to force or require the Employer to assign the
work in dispute to employees represented by the
Laborers rather than to employees represented by
Sheet Metal Workers Local 28.
i We deny the Laborers ' motion to quash the notice of hearing on the
grounds that there was no work in dispute being performed at the time
the Laborers claimed the work . The Laborers' attempt to make distinc-
tions within the work in dispute is without merit It is clear from the
record that the argument attempts to redefine the work into two catego-
ries that are not separable (i e., "demolition and asbestos removal"). Fur-
ther, it is clear from the record that the Laborers did not claim only the
demolition , as asserted in its brief, but also claim all the work in dispute.
693
No party claims there is an agreed -upon method
for the voluntary adjustment of this dispute.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for 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. Employer preference and past practice
The Laborers contends that prior to October
1987, the Employer used employees represented by
the Laborers, not the Sheet Metal Workers, to per-
form asbestos abatement work. However, since that
time the Employer has used only employees repre-
sented by the Sheet Metal Workers on over 100 as-
bestos abatement jobs and, satisfied with their per-
formance, prefers that the work in dispute be done
by employees who are represented by Sheet Metal
Workers Local 28. This factor favors awarding the
work in dispute to employees represented by Sheet
Metal Workers Local 28.2
a As noted above , the Employer and the Sheet Metal Workers contend
that the collective-bargaining agreement between them favors award of
the work in dispute to employees represented by Sheet Metal Workers
Local 28 . The Laborers contends that the Sheet Metal Workers cannot
represent the Employer 's employees based on an offer of proof purport-
ing to establish that the Sheet Metal Workers is disabled from represent-
ing the Employer's employees due to the Sheet Metal Workers pension
fund 's 30 percent ownership interest in the Employer 's business. The
issue in this proceeding is the identity of the employees entitled to per-
form the work, not the identity of their representative There are unfair
labor practice charges currently pending concerning the legality of the
agreement between the Employer and the Sheet Metal Workers . Accord-
ingly, and because other factors exist that favor an award of the disputed
work to employees represented by Sheet Metal Workers Local 28, we
find it unnecessary to consider the agreement in determining the merits of
the jurisdictional dispute in this proceeding . See Longshoremen ILA Local
1332 (Trailer Marine), 264 NLRB 319, 321 fn 7 (1982). Given this find-
ing, we believe it is unnecessary to reopen the record to permit the La-
borers to introduce evidence pertaining to the offer of proof.
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Economy and efficiency of operations
The Employer contends that prior to October
1987, it had to use a "hodge podge" of crews made
up of employees represented by various unions be-
cause no one trade was qualified or willing to do
all the work . This resulted in work disputes, pro-
duction delays , increased labor costs, and friction
between employees represented by the various
unions at the jobs . However , the employees repre-
sented by Sheet Metal Workers Local 28 have,
since October 1987 , been able and willing to do all
phases of the asbestos abatement process, except
electrical work . This factor favors awarding the
work in dispute to employees represented by Sheet
Metal Workers Local 28.
3. Area practice3
The evidence shows that employees represented
by both the Sheet Metal Workers and the Laborers
perform asbestos abatement work in the New York
City area . This factor does not favor awarding the
work in dispute to a particular group of employees.
4. Relative skills and training
The evidence shows that employees represented
by both unions possess the requisite skills and train-
ing to perform the work in dispute . This factor
does not favor awarding the work in dispute to a
particular group of employees.
5. Certifications by the Board
There are no certifications by the Board. This
factor does not favor awarding the work in dispute
to a particular group of employees.
6. Awards of joint boards
The Laborers argues that the Board should rely
on a 1980 Impartial Jurisdictional Disputes Board
(IJDB) decision involving several unions including
the Sheet Metal Workers International and the La-
borers International . The Employer, however, was
not a party to that decision . Moreover , that deci-
sion predates the changed circumstances pertaining
to asbestos removal that the record evidences.
Under these circumstances , we accord the IJDB
decision little weight.
8 The Laborers urges the Board to reopen the record to permit it to
show industry practice nationwide . Based on facts on this case , we con-
clude that , even accepting the Laborers' assertions concerning nationwide
practice as true , such evidence would not affect our determination We
therefore reject the request to reopen the record.
Conclusions
After considering all the relevant factors, we
conclude that the employees represented by the
Sheet Metal Workers' International Association,
AFL-CIO, Local 28 , are entitled to perform the
work in dispute . We reach this conclusion relying
on employer preference and past practice, and
economy and efficiency of operations . In making
this determination , we are awarding the work in
dispute to employees represented by Sheet Metal
Workers Local 28 , not to that Union or its mem-
bers.
Scope of the Award
The Sheet Metal Workers contends that the
scope of the award should be broad enough to in-
clude all asbestos abatement jobs engaged in by the
Employer throughout the five boroughs of New
York City. Generally, in order to support a broad,
areawide award , there must be evidence that the
disputed work has been a continuing source of con-
troversy in the relevant geographic area, that simi-
lar disputes are likely to recur, and that the
charged party has a proclivity to engage in unlaw-
ful conduct to obtain work similar to the disputed
work. Electrical Workers IBEW Local 104 (Stand-
ard Sign), 248 NLRB 1144, 1148 (1980). We do not
believe the record supports a broad award. Ac-
cordingly, our determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of ACMAT Corporation repre-
sented by the Sheet Metal Workers ' International
Association , AFL-CIO , Local 28 are entitled to
perform the removal of asbestos from the sixth and
eighth floors of the Pan Am Building in New York
City.
2. Laborers' International Union of North Amer-
ica, AFL-CIO, Local 104 is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force ACMAT Corporation to assign the work in
dispute to employees represented by it.
3. Within 10 days from this date, Laborers' Inter-
national Union of North America, AFL-CIO,
Local 104 shall notify the Regional Director for
Region 2 in writing whether it will refrain from
forcing the Employer, by means proscribed by Sec-
tion 8(b)(4)(D), to assign the work in dispute in a
manner inconsistent with this determination.