Laborers Local 190 (ACMAT Corp.)

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1117 (N.L.R.B. 1990)

1117
300 NLRB No. 154
LABORERS LOCAL 190 (ACMAT CORP.)
1 Although the parties did not specifically stipulate the underlying facts to
establish jurisdiction, the jurisdictional facts were not disputed and are sup-
ported by evidence in the record. Further, we take judicial notice that in La-
borers Local 104 (ACMAT Corp.), 295 NLRB 692 (1989), the Board found
that ACMAT met its standard for asserting jurisdiction. See Spring Valley
Farms, 274 NLRB 643 (1985); Longshoremen ILA Local 1408 (Jacksonville
Container), 285 NLRB 644 (1987).
Construction and General Laborers’ Local Union
#190, Albany, New York and Vicinity, AFL–
CIO and ACMAT Corporation and Sheet
Metal Workers International Association,
AFL–CIO and Sheet Metal Workers Inter-
national Local Union No. 83, AFL–CIO. Case
3–CD–601
December 31, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS CRACRAFT, DEVANEY, AND
RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on October 12, 1989, and the amended charge
was filed on October 20, 1989, by ACMAT Corpora-
tion (ACMAT or the Employer), alleging that the Re-
spondent, Construction and General Laborers’ Local
Union #190, Albany, New York and Vicinity, AFL–
CIO (the Laborers), violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed 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 and Sheet Metal
Workers International Local Union No. 83, AFL–CIO
(Sheet Metal Workers Local 83). The hearing was held
on November 29 and 30 and December 21, 1989, be-
fore Hearing Officer Nancy R. MacIntyre.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
ACMAT Corporation is engaged in the business of
asbestos abatement throughout the United States, in-
cluding Albany, New York. ACMAT Corporation an-
nually derives gross revenues in excess of $500,000,
and purchases and receives equipment and materials
valued in excess of $50,000 from suppliers located
outside the State of New York.1 We find that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Laborers
and Sheet Metal Workers International Association and
its Local 83 are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer, whose corporate offices are in Con-
necticut, is in the construction industry and has been
in business for approximately 40 years. Around 1976,
as the latent dangers associated with asbestos became
apparent, the Employer became involved in the re-
moval, or abatement, of asbestos.
Throughout its history, the Employer had collective-
bargaining agreements with many building trade
unions. When ACMAT started in the asbestos abate-
ment field, it used employees represented by various
unions on its projects. This arrangement, however, was
not satisfactory because disputes arose over which
trade was entitled to perform a specific task. These
disputes resulted in production delays, cost overruns,
and friction among employees represented by the dif-
ferent unions.
In order to compete more effectively, the Employer
decided to use a single group of workers who were
trained in all phases of the asbestos abatement process.
The Employer learned that the Sheet Metal Workers
had begun a nationwide training program designed to
give its members comprehensive training in all phases
of asbestos abatement. In ensuing meetings and discus-
sions the Employer ascertained that the Sheet Metal
Workers’ training program would be comprehensive
and complete and that the training would be available
on a localized basis. The Employer was convinced that
the Sheet Metal Workers could provide it with the
skilled workers it needed. In late 1986 and early 1987,
the Employer sent letters to various unions, including
the Laborers, terminating the agreement or indicating
that agreements would not be renewed or extended un-
less ACMAT specifically agreed in writing. In Decem-
ber 1987, the Employer and the Sheet Metal Workers
executed a nationwide agreement covering all asbestos
abatement work engaged in by the Employer.
Sweet Associates, Inc. is a general contractor en-
gaged in building construction and renovation work
within approximately a 100-mile radius of Albany,
New York. Sweet Associates was awarded a contract
by the State of New York for work on the third floor
of the Old State Education Building in Albany, New
York. The project included asbestos abatement as well
as ordinary demolition work. Because Sweet Associ-
ates is not licensed to perform, and does not perform,
asbestos abatement, it subcontracted that phase of the
work. After considering about 12 firms, Sweet Associ-
ates selected ACMAT as its subcontractor.
Sweet Associates maintains collective-bargaining
agreements with several trade unions, including Labor-
ers. Sweet Associates has no agreement with Sheet
Metal Workers Local 83. When Sam Fresina, the busi-
ness manager of Laborers, learned that Sweet Associ-
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 That agreement has a subcontracting clause that requires that subcontrac-
tors performing bargaining unit work be signatory to the agreement. However,
the agreement contains exceptions, one of which expressly permits work there-
under to be subcontracted to a company whose employees are represented by
another union that is affiliated with the AFL–CIO in this geographical jurisdic-
tion.
The Laborers filed a subcontracting grievance against Sweet Associates
which was submitted to a joint board of arbitration. Neither ACMAT nor the
Sheet Metal Workers was party to that proceeding. The arbitration board sus-
tained the Laborers’ grievance only insofar as holding that Sweet should have
directed ACMAT to meet with representatives of Laborers prior to the time
the subcontract was awarded. The arbitration decision did not hold that
Sweet’s subcontract of the disputed work to ACMAT was improper.
3 Laborers Local 104 (ACMAT Corp.), 295 NLRB 692 (1989).
4 Fresina’s testimony conflicted with Fortune’s in some respects. However,
in 10(k) proceedings, a conflict in testimony does not prevent the Board from
finding evidence of reasonable cause and proceeding with a determination of
the dispute. Laborers Local 334 (C. H. Heist Corp.), 175 NLRB 608, 609
(1969).
ates was considering subcontracting asbestos abatement
work to ACMAT, he protested that this would violate
the subcontracting clause of the contract between
Sweet Associates and Laborers Local 190.2
During August 1989, Fresina spoke to Robert For-
tune, president of Sweet Associates, on several occa-
sions and demanded that the asbestos abatement work
should be done by employees represented by Laborers
rather than Sheet Metal Workers. Fresina told Fortune
that the Laborers could not allow employees rep-
resented by the Sheet Metal Workers to perform any
of the disputed work. Fresina testified that he had stat-
ed to Fortune, ‘‘We can’t split our work with Sheet
Metal Workers. We can’t give what is 100 percent
ours to another craft. It’s our work.’’ Fortune testified
that Fresina threatened that there would be ‘‘massive
demonstrations’’ and ‘‘labor disruptions’’ if the work
was not shifted from sheet metal workers to laborers.
Fortune also testified that Fresina threatened that ‘‘the
job would not progress’’ and ‘‘it would be financially
a problem for all those involved,’’ and ‘‘it just
couldn’t be allowed by the laborers to have sheet metal
workers do this work.’’ Bryan Marsh, vice president of
ACMAT, testified that he attended a meeting in Sep-
tember 1989 at which Fresina stated that he would in-
sist that the work be done on the job by laborers and
that he did not want sheet metal workers doing the
work. Marsh also testified that Fresina said he wanted
ACMAT to sign an agreement with the Laborers if it
came on site to do the work. Fresina admitted saying
that, if ACMAT did not comply with Sweet Associ-
ate’s agreement, there would be a problem and there
might be a demonstration, but Fresina said he never
mentioned picketing or demonstrating at the jobsite.
B. Work in Dispute
The disputed work involves removal of asbestos
from the third floor of the Old State Education Build-
ing in Albany, New York.
C. Contentions of the Parties
The Employer and the Sheet Metal Workers contend
that there is reasonable cause to believe that Section
8(b)(4)(D) has been violated. They further argue that
the work in dispute should be awarded to employees
represented by the Sheet Metal Workers based on their
collective-bargaining agreement, relative skills and
training, past practice, economy and efficiency of oper-
ations, employer preference, and a prior Board deter-
mination.3
The Laborers moves to quash the notice of hearing
on the ground that there is no reason to believe that
a violation of the Act has occurred. The Laborers con-
tends that vague or ambiguous threats such as those al-
leged here which are unsupported by later misconduct
do not constitute reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. The Laborers also
contends that this is a subcontracting rather than a ju-
risdictional dispute, and that the Board has unequivo-
cally held that activity in support of a subcontracting
claim is not jurisdictional in nature and is not the basis
for an 8(b)(4)(D) complaint.
With regard to the merits, the Laborers contends that
the work in dispute should be awarded to employees
it represents based on area and industry practice, rel-
ative skills and experience, economy and efficiency of
operations, past practice, and a 1980 award of the Joint
Board. The Laborers asserts that the collective-bar-
gaining agreement between the Employer and the
Sheet Metal Workers creates a conflict of interest and
cannot support an award of the work in dispute to em-
ployees represented by Sheet Metal Workers Local 83.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be established that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) has been violated. This
requires a finding that there is reasonable cause to be-
lieve that a party has used proscribed means to enforce
its claim and that there are competing claims to dis-
puted work between rival groups of employees.
As noted above, Robert Fortune, president of Sweet
Associates, testified that in August 1989 he had a se-
ries of conversations with Sam Fresina, business man-
ager of Laborers, during which Fresina stated that if
asbestos work was performed by employees rep-
resented by Sheet Metal Workers rather than Laborers-
represented employees, there would be ‘‘labor disrup-
tions’’ and ‘‘massive demonstrations,’’ the job would
not progress, and it would be financially a problem for
all those involved.4 Bryan Marsh, vice president of
ACMAT, testified that during a September 1989 meet-
ing Fresina stated that he would insist that the work
be done on the job by laborers, that he did not want
sheet metal workers doing the work, and that he want-
ed ACMAT to sign an agreement with the Laborers if
1119LABORERS LOCAL 190 (ACMAT CORP.)
5 See Laborers (O’Connell’s Sons), 288 NLRB 53 (1988); Sheet Metal
Workers Local 107 (Lathrop Co.), 276 NLRB 1200, 1202 (1985).
6 Carpenters Local 33 (Blount Bros.), 289 NLRB 1482 (1988), relied on by
Laborers, is distinguishable. Blount involved the issue of whether pursuit of
a grievance after a 10(k) award constituted coercion within the meaning of
Sec. 8(b)(4)(ii)(D). The instant case, on the other hand, involves the separate
issue of whether there are competing claims to the work. Accordingly, we
deny the Laborers’ motion to quash the notice of hearing.
7 We find no merit in the Laborers’ contention that the arbitration pro-
ceeding conducted pursuant to the collective-bargaining agreement between
Laborers and Sweet Associates constituted an agreed-on method for the vol-
untary adjustment of the dispute. It is well established that the ‘‘voluntary ad-
justment must bind all disputing unions as well as the Employer in order to
come within the meaning of voluntary settlement as set out in Section 10(k).’’
Laborers Local 1184 (H. M. Robertson Pipeline), 192 NLRB 1078, 1079
(1971). See NLRB v. Plasterers Local 79 (Texas State Tile Co.), 404 U.S. 116
(1971). In this case, it is undisputed that ACMAT and Sheet Metal Workers
were not parties to the arbitration proceeding.
8 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 83. Be-
cause other factors exist that favor an award of the disputed work to employ-
ees represented by Sheet Metal Workers Local 83, we find it unnecessary to
consider the agreement between the Employer and Sheet Metal Workers as a
factor 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).
The Laborers contends that the Sheet Metal Workers cannot represent the
Employer’s employees based on an offer of proof purporting to establish that
the Sheet Metal Workers is disabled from representing the Employer’s em-
ployees because the Sheet Metal Workers National Pension Fund has a sub-
stantial ownership interest in the Employer’s business. The issue in this pro-
ceeding is the identity of the employees entitled to perform the work, not the
identity of their representative. Because we find the evidence the Laborers
seek to introduce is not relevant, we find it unnecessary to reopen the record
to permit the Laborers to introduce evidence pertaining to the offer of proof.
ACMAT came on site to do the work. Accordingly, in
light of Fortune’s testimony concerning ‘‘labor disrup-
tions’’ and ‘‘massive demonstrations,’’ we find that if
there are competing claims to disputed work between
rival employee groups, there is reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred.
Laborers contends that this is a subcontracting rather
than a jurisdictional dispute, and that activity in sup-
port of a subcontracting claim is not a jurisdictional
claim. We disagree. Under Board precedent, the Labor-
ers’ subcontracting grievance constitutes a claim for
the work.5 We further find that Fresina’s statements to
Fortune and Marsh, as well as the filing of the griev-
ance, constitute a demand for the work. Consequently,
we conclude that there are active competing claims to
disputed work between rival groups of employees.6
Further, the record reveals no agreed-on method
among the parties for the resolution of the dispute.7
We therefore find reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-on method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dispute
is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Employer preference and past practice
Prior to 1987, ACMAT used composite crews,
which included, among others, employees represented
by the Laborers and Sheet Metal Workers Unions.
Since the fall of 1987, ACMAT has used only employ-
ees represented by the Sheet Metal Workers on more
than 150 asbestos abatement jobs (over 98 percent of
ACMAT’s projects). These have included a number of
projects within 100 miles of Albany. The Employer is
satisfied with the sheet metal workers’ performance
and prefers that the work in dispute be done by em-
ployees who are represented by Sheet Metal Workers
Local 83. These factors therefore favor awarding the
work in dispute to employees represented by Sheet
Metal Workers Local 83.8
2. Economy and efficiency of operations
Marsh testified that, prior to signing an agreement
with the Sheet Metal Workers, ACMAT used com-
posite crews with employees represented by various
unions. This resulted in increased costs, production
delays, and friction among employees. Since 1987
more than 98 percent of ACMAT’s asbestos abatement
work has been done by employees represented by the
Sheet Metal Workers. The Sheet Metal Workers’ crews
have a ratio of one journeyman to three classified
workers. Marsh testified that it was beneficial to have
journeymen on the crews and that it resulted in overall
economies. Journeymen have gone through the appren-
ticeship ranks and are trained not only as asbestos
workers but as skilled tradespeople. Journeymen are
able to read and work with blueprints and are better
trained from the standpoint of layout in the more so-
phisticated parts of the abatement business. In the past
when there was a difficult layout, ACMAT had to use
carpenters to do the layout because the Laborers-rep-
resented employees were not qualified to perform the
work. However, the Employer did not have that dif-
ficulty when it assigned the work to employees rep-
resented by Sheet Metal Workers. Accordingly, it is
more efficient for the Employer to use sheet metal
workers, who have skills beyond actual asbestos abate-
ment skills which are needed on certain jobs.
Further, the record also indicates that Sheet Metal
Workers provides a more stable source of labor. Marsh
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified that when using employees represented by
other unions, workers were not always available and
that this was particularly true of laborers. He stated
that several Laborers business agents told him that it
was difficult to obtain men in the summer because
they would rather work outside. Marsh also indicated
that there was a high turnover rate among laborers.
For these reasons we find that the factor of effi-
ciency and economy of operations favors awarding the
work in dispute to employees represented by Sheet
Metal Workers Local 83.
3. Area and industry practice
The evidence shows that employees represented by
both the Sheet Metal Workers and the Laborers per-
form asbestos abatement work in the Albany, New
York area and in other areas of the United States.
Thus, these factors do not favor awarding the work in
dispute to either group of employees.
4. Relative skills and training
The evidence shows that employees represented by
both Unions possess the requisite skills and training to
perform the work in dispute. This factor does not favor
awarding the work in dispute to either group of em-
ployees.
5. Certification by the Board
There are no certifications by the Board. This factor
does not favor awarding the work in dispute to either
group of employees.
6. Awards of joint boards
The Laborers cites a 1980 Impartial Jurisdictional
Disputes Board (IJDB) decision involving several
unions, including the Sheet Metal Workers Inter-
national and the Laborers International. The Employer,
however, was not a party to that decision. Moreover,
that decision predates the changed circumstances per-
taining to asbestos removal shown by the record.
Under these circumstances, we accord the IJDB deci-
sion little weight.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Sheet Metal
Workers Local 83 are entitled to perform the work in
dispute. We reach this conclusion relying on employer
preference and past practice, and economy and effi-
ciency of operations.
In making this determination, we are awarding the
disputed work to employees represented by Sheet
Metal Workers Local 83, not to that Union or its mem-
bers.
Scope of the award
The Employer requests a nationwide award and the
Sheet Metal Workers contends that the scope of the
award should be areawide, statewide, or nationwide.
Generally, in order to support a broad award, there
must be evidence that the disputed work has been a
continuing source of controversy in the relevant geo-
graphic area, that similar disputes are likely to recur,
and that the charged party has a proclivity to engage
in unlawful conduct to obtain work similar to the dis-
puted work. Electrical Workers IBEW Local 104
(Standard Sign), 248 NLRB 1144, 1148 (1980). We do
not believe the record supports a broad award. More-
over, although ACMAT and the Sheet Metal Workers
contend that the Laborers’ International is fomenting
illegal incidents, the Laborers’ International Union is
not a party to this proceeding. The Board will not
issue a work award against an organization that is not
a party. Sheet Metal Workers Local 85 (Kewaunee Sci-
entific Equipment), 198 NLRB 771, 773–774 (1972).
Accordingly, our determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of ACMAT Corporation represented
by Sheet Metal Workers International Local Union No.
83, AFL–CIO are entitled to perform the asbestos
abatement work on the third floor of the Old State
Education Building in Albany, New York.
2. Construction and General Laborers’ Local Union
#190, Albany, New York and Vicinity, AFL–CIO is
not entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force ACMAT Corporation to assign the
disputed work to employees represented by it.
3. Within 10 days from this date, Construction and
General Laborers’ Local Union #190, Albany, New
York and Vicinity, AFL–CIO shall notify the Regional
Director for Region 3 in writing whether it will refrain
from forcing the Employer, by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with the determination here.