Laborers Local 22 (Agc Of Massachusetts)

National Labor Relations Board - Board Decisions

Apr 10, 1987

283 N.L.R.B. 605 (N.L.R.B. 1987)

LABORERS LOCAL 22 (AGC OF MASSACHUSETTS)
Laborers' International Union of North America,
AFL-CIO, Local 22 and Associated General
.Contractors of Massachusetts, Inc. and Perini
Corporation and United Brotherhood off Carpen-
ters and Joiners of America , AFL-CIO, Local
218. Case 1-CD-759-1
10 April 1987
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
The charge in this Section 10(k) proceeding was
filed on 30 October 1985 by Perini Corporation
(Perini) and the Associated General Contractors of
Massachusetts, Inc. (AGC)..The charge alleges that
the Respondent, Laborers Local 22, violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object
of forcing -Perini and its subcontractor Anastasi
Brothers Corporation (Anastasi) to assign certain
work to employees it represents rather than to em-
ployees' represented by Carpenters Local 218. The
hearing was held 10 March 1986 before Hearing
Officer Robert A. Pulcini. ` '
The, National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing offi cer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The AGC is an association which represents em-
ployers engaged in the building construction indus-
try. Perini is a member of the AGC. Perini, a Mas-
sachusetts corporation with its principal place of
business in Framingham , Massachusetts, is a gener-
al contractor in the building ; construction industry.
Annually Perini receives goods valued in excess of
$50,000 directly_ from points located outside the
State of Massachusetts . Anastasi, a Pennsylvania
corporation with its principal place of business in
Marshfield, Massachusetts, is a masonry contractor ,
in the building construction industry . It annually
receives goods valued in excess of $50,000 directly
from points located outside the State of Massachu-
setts.
The parties stipulated , and we find , that Perini
and Anastasi are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
i The parties stipulated that the transcript developed in Laborers Local
223 1Anastasi Bros Corp.), 272 NLRB 860 (1984), should be mcorporated
into the present proceeding.
605
Laborers Local 22 and Carpenters Local 218 are
labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background -and Facts of Dispute
At all pertinent times, Perini, as a member of the
AGC, and Carpenters Local 218 were parties to a
collective-bargaining agreement which designated
certain work, including the erecting and disman-
tling of all scaffolding for all trades, as being
within the jurisdiction of the Carpenters. The
agreement also required that Perini would not sub-
contract any work encompassed in the agreement
to a subcontractor who was not a party to a collec-
tive-bargaining agreement with the Carpenters.
Perini, as the general contractor for the con-
struction of the Charlestown Condominium Project
in Charlestown, Massachusetts, subcontracted the
project's masonry work to Anastasi. The subcon-
tracted work included the erecting and dismantling
of pipe scaffolding. Anastasia, who does not employ
carpenters, is not a party to a collective-bargaining
agreement with the Carpenters. It is, however, sig-
natory to the AGC's contract with the Laborers,
which describes the erecting and removal of all
scaffolds as being within the jurisdiction of the La-
borers,
Prior to the commencement of the scaffolding
work on this project in June 1985,2 Walter Chip-
man, a Carpenters Local 218 official, met at the
jobsite with Perini's superintendent, O'Rourke.
Chipman told O'Rourke that the scaffolding work
belonged to the carpenters and that if Perini as-
signed it to Anastasi, the Carpenters would pursue
the matter as a subcontracting violation and would
not let carpenters work on the scaffold. Thereafter,
Local 218's business agent, Green, requested that a
meeting be set up at the jobsite to discuss the sub-
contracting of the work to Anastasii. The meeting
took place around 3 July. In attendance were Chip-
man, Green, Perini's director of personnel) Gross,
Project' Manager David Kibler, and Charles
Schumb of the AGC. At that meeting, Local, 218
representatives asserted that the scaffolding work
belonged to the carpenters and that in their estima-
tion the subcontracting of it to' Anastasi was a vio-
lation of the subcontracting clause. Chipman and
Green added that they would do what they had to
do to protect their work. As noted, the scaffolding
work commenced in June and it was erected and
dismantled by Anastasi employees. As of the date
of the hearing, the work was nearly completed.
2 Hereafter, all dates refer to 1985.
283 NLRB No. 90
606 DECISIONS OF THE NATIONAL LABOR RELATIONS. BOARD
Notwithstanding Chipman's earlier remarks, the
carpenters did not refuse to work off the scaffold-
ing. In the meantime , however, around mid-July,
Local 218 filed a grievance against Perini concern-
ing its subcontracting of the scaffolding work. In
October, Gross learned that an arbitrator had ruled
that Blount Brothers Corporation had breached its
contract with another local of the Carpenters by
subcontracting scaffolding work to a subcontrator
who did not have an agreement with the Carpen-
ters. Upon learning this, Gross became concerned
because Local 218's pending grievance against
Perini involved a similar dispute. Gross then con-
tacted Lou Mandarin, the business agent for La-
borers Local 22, to discuss the impact of the
Blount arbitration award on the Charlestown
project. Gross asked Mandarin to attend a meeting
with Gross and a representative of the Carpenters
to see if an ,accommodation, such as a composite
crew or an adjusted work assignment , could be
worked out. Mandarin said that he would not
attend, a meeting and that it was his Union's work
and, if Perini wished to change the assignment, he
would not supply any laborers at all to the project.
Gross testified that if the laborers were pulled from
the job it would, in essence, be shut down. There-
after, Perini did not ask Anastasi to use carpenters
on the scaffolding work and no laborers were with-
drawn from the jobsite.
On 30 October and 15 November, respectively,
Perini and AGC filed a charge and amended
charge alleging that' Laborers Local 22 violated
Section 8(bx4)(D). They filed a similar charge 30
October alleging that Carpenters Local 218 had
also violated Section 8(b)(4)(D). This latter charge,
however, was subsequently withdrawn.
B. Work in Dispute
The disputed work involves the erecting and dis-
mantling of ,pipe scaffolding at the Charlestown
Condominium Project in Charlestown, Massachu-
setts.
C. Contentions of the Parties
Perini and AGC contend that the disputed work
was properly assigned to employees represented by
the Laborers based on the Laborers ' collective-bar-
gaining agreements with both Perini and Anastasi,
company practice, area practice , economy and effi-
ciency of operation , skills, and safety . They further
contend that a broad award is warranted covering
the geographic area encompassed by the Boston
District Council of Carpenters' agreement with
AGC.
Carpenters Local 218 contends that no jurisdic-
tional dispute exists . It argues that it is not claiming
the disputed work but, is merely pursuing a griev-
ance seeking a declaration by an arbitrator that the
subcontracting clause of its agreement with Perini
has been violated. -Local 218 contends that this
conduct is not tantamount to a demand for the
work because Local 218 has not sought any back-
pay remedy or money damages for breach of the
collective-bargaining agreement.
At the hearing, Laborers Local 22 took the posi-
tion that there is a viable jurisdictional dispute over
the assignment of the work and that Local 218's at-
tempted disclaimer at the hearing was ineffective.
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 the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
In October, Laborers Local 22 threatened not to
supply any laborers to the project if the disputed
work were reassigned to employees represented by
Local 218. Further, the parties have stipulated that
-there exists no agreed-on method for the resolution
of this dispute.- We therefore find,reasonable cause
to believe that a violation of Section 8(bX4)(D) has
occurred and that there exists no agreed-on method
of voluntary adjustment of the dispute 'within, the
meaning of Section 10(k) of the Act. Accordingly,
we fmd that the dispute is properly before the
Board for determination.3
E. Merits of the Dispute
Section 10(k) requires the Board to make aaf-
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).
a As noted, in May, Carpenters Local 218 threatened to refuse to
permit carpenters to work on the scaffolding, at the Charlestown Condo-
minium Project for the purpose of forcing Perini to assign the disputed
work to employees represented by Carpenters. Carpenters, in July, later
threatened to do what they had to do to protect' their claim to the work.
Carpenters Local 218 now indicates that it has disclaimed the work and
contends that therefore no jurisdictional dispute exists . We find that Car-
penters Local 218's attempted ' disclaimer of the work is not an effective
renunciation which resolves the jurisdictional dispute. We note that
Local 218's attempted disclaimer was first asserted at the hearing when
the disputed work was almost completed See, e.g., 'Laborers Local 910
(Brockway Glass Co.), 226 NLRB 142, 143 (1976).
LABORERS LOCAL 22 (AGC ' OF MASSACHUSETTS)
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that the Board has certified
either Carpenters Local 218 or Laborers Local 22
as the collective-bargaining representative for any
of the employees involved herein. As noted, the
Laborers, through the AGC, has an agreement
with Anastasi which describes, at Appendix A, the
"Erection, planking and removal of all scaffolds for
lathers, plasterers, bricklayers, masons and other
construction trades crafts. Building, planking or in-
stallation and removal of all staging, swinging and
hanging scaffolds, including maintenance thereof"
as being within the jurisdiction of the Laborers.
The Carpenters does not have an agreement with
Anastasi. Although Carpenters does have an' agree-
ment with the general contractor, Perini, that
agreement is not germane to the instant work dis-
pute. That is so because it is Anastasi, not Perini,
that is the employer for the purposes of deciding
the work dispute. In this regard, it is well settled
that it is the company that ultimately controls and
makes the job assignment that is deemed to be the
employer. Laborers Local 223 (Anastasi Bros. Corp.),
supra, 272 NLRB at 862-863. In the present case, it
is Anastasi who assigned the disputed work, and it
is Anastasi that is the properly designated employer
for the purpose of determining the award of the
disputed work. Accordingly, because the Laborers
have an agreement with Anastasi which indicates
that the scaffolding work is under the jurisdiction
of the Laborers, while the Carpenters have no
agreement with Anastasi, we find that this factor
favors an award of the disputed work to the em-
ployees represented by Laborers Local 22.
2. Company preference and past practice
Anastasi has assigned the disputed work to em-
ployees represented by Laborers Local 22 and is
satisfied with their performance. In addition, Anas-
tasi has had a past practice of assigning scaffolding
work on other projects to employees represented
by Laborers. Anastasi does not employ carpenters
and always employs laborers to perform scaffold-
ing work. Accordingly, we find that these factors
favor an award of the disputed work to the em-
ployees represented by Laborers Local 22.
3: Relative skills
Anastasi's field superintendent, Michael Sneel,
testified that the laborers skillfully and safely erect
the scaffolding and that he is satisfied with their ex-
pertise. Sneel also testified that, in his experience,
607
carpenters are irisc fficiently'skilled and experienced
to assist the hoisting crews in unloading and dis-
mantling the scaffolding. Accordingly, on this
record, we find that this factor. favors an award of
the disputed work to the employees represented by
Laborers Local 22.
4. Economy and efficiency of operations
The laborers perform a variety of duties at the
jobsite in addition to their duties in erecting and
dismantling the scaffolding. If Anastasi were direct-
ed to assign the disputed work to carpenters, Anas-
tasi would not be able to lay off any laborers and
the laborers would have periods of idle time result-
ing from their not having the responsibility for the
scaffolding. Accordingly, we find that this factor
favors an award of the work in dispute to employ-
ees represented by Laborers Local 22.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
Local 22 are entitled to perform the work in dis-
pute. We reach this conclusion relying on the col-
lective-bargaining agreement between Anastasi and
the Laborers; company preference and past prac-
tice; relative skills; and economy and efficiency of
operations. In making this determination, we are
awarding the work to employees represented by
Laborers Local 22, not to that Union or its mem-
bers.
Scope of Award
Perini and the AGC request that the Board issue
a broad award covering the entire geographic area
encompassed by the Boston District Council of
Carpenters' agreement with the AGC. Perini and
the AGC argue that this is necessary to avoid the
recurrence of similar work disputes between the
Carpenters and' the Laborers which entail work
stoppages and threatened, work stoppages. Perini
and the AGC point out that the Board has previ-
ously considered two virtually identical disputes
and determined that the work in dispute there be
awarded to employees represented by the Labor-
ers.4 They further argue that the constituent locals
of the Boston District Council of Carpenters have
continued to claim the work through the use of al-
legedly unlawful means and that Laborers' local
unions within the geographic area of the Boston
District Council of Carpenters are also intent on
threatening or engaging in work stoppages over
similar disputed work.
4 Laborers Local 22-3 (Turner Construction Ca), 277 NLRB 99 (1985);
Laborers Local 223 (Anastasi Bros), supra.
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We conclude that the issuance of a broad award
would be inappropriate and we shall limit our de-
termination to the particular controversy that
prompted the instant proceeding. In this regard, we
note that there are two prerequisites for a broad,
areawide award. First, there must be evidence that
the disputed work has been a continuous source of
controversy in the relevant geographic area and
,that similar disputes may recur. Second, there must
be evidence demonstrating that the charged party
has a proclivity to engage in unlawful conduct in
order to obtain work similar to the work in dis-
pute. Iron Workers Local 433, (Crescent Corp.), 277
NLRB .670 (1985); Electrical Workers IBEW Local
104 (Standard Sign), 248 NLRB 1144 (1980). In the
present case, Laborers Local 22, not Carpenters
Local 218, is the charged party. Finally, we note
that in Anastasi Bros., supra, there was no allega-
tion of unlawful conduct by Laborers Local 22. In
Turner Construction Co., supra, Laborers- Local 22
was not a party and was not alleged to have en-
gaged in unlawful conduct in connection with that
dispute. Since there is no showing- of a proclivity
of the charged party to engage in unlawful conduct
to obtain work similar to the disputed work, we
find insufficient grounds to issue a broad award,
and we limit our determination accordingly.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute:
Employees of Anastasi Brothers Corporation,
represented by Laborers' International Union of
North America, AFL-CIO, Local 22 are entitled
to perform the erecting and dismantling of pipe
scaffolding at the Charlestown Condominium
Project in Charlestown, Massachusetts.