Laborers Local 1058 (Facchiano Construction)

National Labor Relations Board - Board Decisions

Dec 20, 1985

277 N.L.R.B. 1177 (N.L.R.B. 1985)

LABORERS LOCAL 1058 (FACCHIANO CONSTRUCTION)
Construction , General Laborers and Material Han-
dlers Local Union No. 1058 , AFL-CIO and
Faechiano Construction , Inc. Case 6-CD-812
20 December 1985
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
The charge in this Section 10(k) proceeding was
filed 20 August 19851 by the Employer, alleging
that the Respondent, Laborers Local 1058, violated
Section 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 the
Employer's unrepresented employees. The hearing
was held 13 September before Hearing' Officer Kim
Siegert.
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
The Employer, a Pennsylvania corporation, is a
sewer, water 'line, and street contractor with an
office and place of business located in Pittsburgh,
Pennsylvania; where during the 12-month period
ending 31 August it received products, goods, and
materials valued in excess of $50,000 directly from
points outside the Commonwealth of Pennsylvania.
The parties stipulate, and we find, that the Em-
ployer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that Labor-
ers Local 1058 is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE,
A. Background and Facts of Dispute
In February the Employer won separate con-
tracts with the Pittsburgh Sewer and Water Au-
thority for sewer line replacement in downtown
Pittsburgh and catchbasin reconstruction, areawide.
The Employer has no collective-bargaining agree-
ment with Laborers Local 1058 and its employees
are unrepresented.
Beginning in February, the Employer's manage-
ment spoke several times with Local 1058 repre-
' All dates are in 1985 unless otherwise specified,
1177
`sentatives. During these discussions, the Union
made threats and claimed for its own members the
work the Employer's employees perform. Specifi-
cally, on 12 August Local 1058's Business Manager
Joe Laquatra said that union contractors were
complaining that the Employer was'- performing
"Union work" and he threatened to make it' very
hard on the Employer, set up pickets, or do what-
ever was necessary to make the Employer sign up
with the Union.
On 15 August Local 1058's Business Agent Jerry
Chaney led a group of 20 men to the, Employer's
Stanwix Street jobsite in, downtown Pittsburgh,
where they disrupted operations, made threats,
damaged equipment, and prevented employees
from working. Chaney explained that the Union
was going to stop the Company's work because
"this is our work, we are tired of you scabs in
downtown Pittsburgh."
B. Work in Dispute2
The work in dispute is excavating, constructing,
and installing new catchbasins, sewer' lines, and
pipes;, backfilling the excavation; and-repaving the
street surface at various locations within the city of
Pittsburgh, Pennsylvania, under contractual ar-
rangements with the Pittsburgh Sewer and Water
Authority.
C. Contentions of the Parties
The Employer contends that 'a jurisdictional dis-
pute exists and that the Respondent has violated
Section `8(b)(4)(D) of the Act by coercing it to
assign the work in dispute to employees the Re-
spondent represents. The Employer' further" con-
tends that the work ' in dispute should continue-'to
be assigned' to its unrepresented employees.
The Respondent- contends that it has never
claimed the work the Enlplayer's unrepresented
employees perform and that, therefore, no jurisdic-
tional dispute exists. The Respondent contends,
rather, that it merely has requested the Employer
to become a party to its Heavy Engineering, Rail-
road Contracting, Highway Construction, and Util-
ities Construction Agreement.
D. Applicability of the Statute
At the 12 August meeting Local 1058's repre-
sentatives reiterated their claim for ,the work and
threatened to do whatever'was necessary, to make
the Employer sign up with the Union, including
stopping concrete deliveries and using Pittsburgh
city government contacts to make future contract
2 The Employer seeks to expand the scope of the disputed work, how-
ever, the record is too ambiguous to support that expansion
277 NLRB No. 134
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
awards difficult for the Employer to obtain. Fur-
ther, at the 15 August confrontation at the Stanwix
Street jobsite, a large,group led by a Local 1058
representative made threats, punctured tires, cut
hoses, and, disrupted work, and the representative
explained that this was being done because the
Company's work was "our work."
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. Certification and collective-bargaining
agreement
The parties stipulated, and we find, that there is
no Board certification or bargaining order requir-
ing the Employer to bargain with the Respondent
or any other, labor organization, We also find that
the Employer is not a party to a collective-bargain-
ing agreement with Respondent or any other labor
organization covering the work in dispute. Accord-
ingly, we find that the factors of certification and
collective-bargaining agreement are not relevant to
our determination.
2.'Employer preference and past practice
The ' Employer prefers assigning the disputed
work to its unrepresented employees, as has been
its practice for the previous 14 years. We find these
factors favor awarding the work to the Employer's
unrepresented employees.
3. Relative skills, economy, and efficiency
The record indicates that the Employer specifi-
cally trains its employees in work procedures it has
developed and followed over the years. The record
also indicates that the Respondent's members as
well as the unrepresented employees are -able to
perform basic laborers' work. Unlike the Respond-
ent's members, however, the unrepresented em-
ployees are able and- permitted to perform other
crosstrade tasks such as finishing concrete, driving
trucks, operating backhoes, and building wooden
forms: Accordingly, we find the factors of relative
skills, economy, and efficiency favor awarding the
work to the Employer's unrepresented employees.
Conclusions
After considering all the relevant factors, we
conclude, that the Employer's unrepresented em-
ployees are entitled to perform the work in dispute.
We reach this conclusion relying on the factors of
the Employer's preference and past practice, and
relative skills, economy, and efficiency of oper-
ations. The determination is limited to the contro-
versy that gave rise to' this proceeding.'
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. 'Unrepresented employees of Facchiano Con-
struction, Inc. are entitled to perform the work of
excavating, constructing and installing new catch-
basins, sewer lines, and pipes; backfilling- the exca-
vation; and repaving the street surface at various
locations within the city of Pittsburgh, Pennsylva-
nia, under contractual arrangements with the Pitts-
burgh Sewer and Water Authority.
2. Construction, General Laborers and Material
Handlers Local Union No. 1058, AFL-CIO is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force Facchiano Construction, Inc. to
assign the disputed work to employees it repre-
sents.
3. Within 10 days from this date, Construction,
General Laborers and Material Handlers Local
Union No. 1058, AFL-CIO shall notify the Re-
gional Director for Region 6 in writing whether it
will refrain from forcing the Employer, by means
proscribed by Section 8(b)(4)(D), to assign the dis-
puted work in a manner inconsistent with this de-
termination.
3 We find nothing ,to indicate that Local 1058 will resort to proscribed
means to obtain similar work in the future, and, therefore, we limit the
award to the work in dispute