Laborers Local 223 (Anastasi Brothers.)

National Labor Relations Board - Board Decisions

Oct 22, 1984

272 N.L.R.B. 860 (N.L.R.B. 1984)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers Local 223, Laborers International Union of
North America (Anastasi Brothers Corporation),
Local Union 33, United Brotherhood of Carpen
ters and Joiners of America (Blount Brothers
Corporation), and Boston District Council of
Carpenters, affiliated with the United Brother
hood of Carpenters and Joiners of America, and
Local Union 218, United Brotherhood of Car
penters and Joiners of America (Volpe Con
struction Co, Inc and G J Luchetti, Inc ) and
Associated General Contractors of Massachu
setts, Inc Cases 1-CD-713 1-CD-714 and 1-
CD-715
22 October 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
This IS a consolidated proceeding under Section
10(k) of the National Labor Relations Act follow
ing the filing of charges in Case 1-CD-713 on 20
January 1984, amended on 8 February 1984, by As
sociated General Contractors of Massachusetts,
Inc (AGC) on behalf of Anastasi Brothers Corpo
ration (Anastasi), the filing of charges in Case 1-
CD-714 on 20 January 1984 by AGC on behalf of
one of its member employers, Blount Brothers Cor
poration (Blount Brothers), and the filing of
charges in Case 1-CD-715 on 8 February 1984,
amended on 21 February 1984, by AGC on behalf
of another of its member employers, Volpe Con
struction Company, Inc (Volpe) It is alleged in
Case 1-CD-713 that Laborers Local 223, Laborers
International Union of North America (Laborers
Local 223), violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing or requinng the involved Em
ployer to assign certain work to employees repre
sented by it rather than to employees represented
by Local Union 33, United Brotherhood of Car
penters and Joiners of America (Carpenters Local
33) In Case 1-CD-714, it is alleged that Carpen
ters Local 33 also violated Section 8(b)(4)(D) of
the Act by engaging in certain proscribed activity
with an object of forcing or requiring the Employ
er therein to assign certain work to employees rep
resented by Carpenters rather than to employees
represented by Laborers It is alleged in Case 1-
CD-715 that Boston District Council of Carpen
ters, affiliated with United Brotherhood of Carpen
ters and Joiners of America (Boston District Coun
cil of Carpenters), and Local Union 218 United
Brotherhood of Carpenters and Joiners of America
(Carpenters Local 218), violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activi
ty with an object of forcing or requiring the in
volved Employer to assign certain work to em
ployees represented by Carpenters rather than to
employees represented by Laborers
The hearing was held before Hearing Officer
Thomas J Flynn on 9 and 30 April and 4 May
1984 All parties appearing at the hearing were af
forded full opportunity to be heard, to examine and
cross examine witnesses and to adduce evidence
bearing on the issues Briefs were filed on behalf of
all parties to the proceeding
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
AGC is an association representing employers
engaged in construction and related industries
Blount Brothers and Volpe are two of its members
Blount Brothers, a general contractor incorporated
in Delaware, and Volpe a general contractor in
Massachusetts, annually received goods, products,
and materials valued in excess of $50 000 directly
from points located outside the States of Delaware
and Massachusetts, respectively Anastasi, a Penn
sylvania corporation and G J Luchetti Inc (Lu
chetti), a Massachusetts corporation, are both ma
sonry subcontractors and receive goods, products,
and materials valued in excess of $50,000 directly
from points located outside the States of Pennsyl
yam, and Massachusetts, respectively The parties
stipulate, and we find, that the Employers are en
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Laborers and Car
penters are labor organizations within the meaning
of Section 2(5) of the Act
II THE DISPUTE
A Background and Facts of Dispute
1 Cases 1-CD-713 and 1-CD-714
Blount Brothers is the general contractor for the
Lafayette Place project, which involves a major
hotel and retail area with approximately 300,000
square feet of retail space and a 600 room hotel lo
cated in downtown Boston, Massachusetts Blount
Brothers is a member of AGC and has authorized
AGC to enter into collective bargaining agree
ments with both Carpenters Local 33 and Laborers
Local 223 Blount Brothers subcontracted the ma
sonry work for the project to the Filloramo Con
272 NLRB No 111
LABORERS LOCAL 223 (ANASTASI BROS ) 861
struction Company (not a party to this case), which
was later replaced by Anastasi The masonry sub
contract includes the masonry work as well as the
erecting of scaffolding for the installation of ma
sonry work As the construction project began in
mid May 1983, a business agent for Carpenters
Local 33 informed Blount Brothers that Carpenters
Local 33 claimed jurisdiction over the scaffolding
work This claim was later reiterated by a second
business agent and the steward for Carpenters
Local 33 In June 1983 Filloramo nonetheless as
signed the scaffolding work to members of Labor
ers Local 223
On 24 August 1983 a business agent and steward
for Carpenters Local 33 informed Blount Brothers
that employees represented by Carpenters Local 33
would be directed by the business agent to discon
tinue working off of the scaffolding because it had
been built by members of Laborers Local 223 The
employees represented by Carpenters Local 33
ceased working off of the scaffolding that same
day and did not resume working until 30 August
1983 at the direction of the Carpenters Internation
al representative In November 1983 and January
1984 the general secretary treasurer of Laborers
Local 223 advised Blount Brothers that, if the scaf
folding assignment were taken away from employ
ees represented by Laborers Local 223, he would
pull the laborers off the project In addition, Car
penters Local 33 is pursuing a claim against Blount
Brothers before the American Arbitration Associa
tion that Blount Brothers violated its agreement
with it by allowing the subcontractor to use labor
ers for the scaffolding work rather than carpen
ters 1
' On 24 September 1984 Boston District Council of Carpenters submit
ted a letter asking the Board to stay its proceedings pending a ruling by
the arbitrator On 27 September 1984 the Charging Party filed in opposi
tion Carpenters claimed that in the arbitration hearing which convened
on 21 September 1984 the Laborers Union moved to intervene as a
full participant and thereby agreed to be bound by the arbitrator s dm
sion Carpenters stated that the arbitrator over Carpenters opposition
had agreed to take the motion under advisement and to issue his decision
before 6 November 1984 Carpenters claim that if the arbitrator permits
intervention an agreed on method for the voluntary adjustment of the
dispute may exist and Carpenters would then move to reopen the
record before the Board to receive evidence of the alleged agreed upon
method of voluntary adjustment of the dispute
We deny Carpenters request to stay our proceedings The present dis
pute is ripe for determination and we perceive nothing in Carpenters
letter which should deter our resolution of the dispute While Carpenters
claims that there may exist a voluntary adjustment of the dispute if
the Laborers Union is permitted to Intervene we note that (1) Carpen
ters Itself objects to the intervention (2) Carpenters designation of the
Laborers Union as seeking to intervene does not clearly indicate wheth
er all the various constituents of the Laborers involved in this proceeding
have sought to intervene (3) the arbitration hearing does not appear to
cover all of the dispute before the Board but only a portion of It as the
dispute at the Malden Massachusetts site (see below) does not appear to
be encompassed in the arbitration hearing and (4) Carpenters does not
even unequivocally claim that if the Laborers Union is permitted to
intervene there will be a method for the voluntary adjustment of the chs
2 Case 1-CD-715 4
The second controversy in this proceeding in
volves the Malden Hospital project located in
Malden Massachusetts, approximately 15 miles
north of Boston On 1 November 1983 Volpe, the
general contractor for the project, held a prejob
conference attended by representatives of all the
contractors and subcontractors involved on the
project, as well as representatives from Carpenters
Local 218 and Local 22, Laborers International
Union of North America (Laborers Local 22) At
the conference Volpe, who has used laborers for
scaffolding work for the past 52 years, stated that
the masonry subcontractor on the project Lu
chetti would be assigning the scaffolding work to
members of Laborers Local 22 The representative
for Carpenters Local 218 first requested that the
scaffolding work be reassigned to carpenters, but
was advised that Luchetti intended to have the
work performed by members of Laborers Local 22
The representative later announced that the busi
ness agent would be directed to withhold Carpen
ters Local 218 members from working off of the
scaffolding if anyone other than carpenters erected
the scaffolding Although employees represented
by Laborers Local 22 did indeed erect the scaffold
ing for this project, Carpenters Local 218 did not
engage in an actual work stoppage
B Work in Dispute
The disputed work involves erecting and disman
ding pipe scaffolding for the installation of mason
ry work on the Lafayette Place project in Boston,
Massachusetts and the Malden Hospital site in
Malden, Massachusetts
C Contentions of the Parties
AGC, representative of the various employers in
this proceeding contends that the disputed work
was properly awarded to employees represented by
Laborers Locals 223 and 22 based on the general
contractors and the masonry subcontractors col
lective bargaining agreements with Laborers, the
Employers preference and past practices, and
economy and efficiency of operation In addition,
AGC urges that a broad award be made covering
the geographic areas encompassed in the Boston
District Council of Carpenters agreement with
AGC At the hearing, Laborers took a position
consistent with that of AGC Carpenters contends
that the disputed work should be awarded to em
ployees represented by Carpenters Locals 33 and
pute but only that such a method may exist In light of the foregoing
we deny the request to stay our proceedings
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
218 on the basis of the collective bargaining agree
ment between the general contractors and Carpen
ters and on the basis of a 1920 decision awarding
similar scaffolding work to Carpenters
D Applicability of the Statute
As noted above Carpenters Local 218 threat
ened to strike at the Malden Hospital site (Case 1-
CD-715) and Carpenters Local 33 engaged in an
actual work stoppage at the Lafayette Place
project site (Case 1-CD-714) for the purpose of
forcing the Employers to reassign the disputed
work to employees represented by Carpenters In
addition, Laborers Local 223 threatened to strike at
the Lafayette Place project site (Case 1-CD-713) if
the disputed work were reassigned to employees
represented by Carpenters Local 33 Moreover the
parties have stipulated that there exists no agreed
upon method for voluntary resolution of this dis
pute We therefore find reasonable cause to believe
that a violation of 'Section 8(b)(4)(D) has occurred
in each case presently before us, and that there
exists no agreed upon method of 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 Certifications and collective bargaining
agreements
There is no evidence that the Board has certified
any of the Carpenters or Laborers Unions involved
in this dispute as the collective bargaining repre
sentative for any of the employees involved herein
Both Carpenters and Laborers insist that their col
lective bargaining agreements with AGC award ju
risdiction over the disputed work to employees
represented by their Unions The Laborers agree
ment with AGC, to which both the general con
tractors (Blount Brothers and Volpe) and the ma
sonry subcontractors (Anastasi and Luchetti) are
signatory, specifically mentions the scaffolding
work under the Laborers Jurisdictional Claims
(C P Exh 2 app A , p 24)
Erection planking and removal of all scaffolds
for lathers, plasterers bricklayers, masons and
other construction trades crafts Building
planking or installation and removal of all
staging, swinging and hanging scaffolds in
cluding maintenance thereof
In addition, subcontractors Anastasi and Luchetti
are signatory to an agreement between the Mason
Contractors Association of America Inc and the
Laborers International Union of North America
which also includes scaffolding work under the La
borers jurisdiction (C P Exh 4, art III, p 2)
All unloading erecting, dismantling, moving
and adjustment of scaffolds
The Carpenters agreement with the AGC, to
which the general contractors are signatory but
the masonry subcontractors are not signatory also
specifically mentions scaffolding work under the
Carpenters claim of jurisdiction (C P Exh 1 art I,
pp 2-3) however the Carpenters agreement also
expressly bestows on the contractor the responsibil
ity for making the specific assignments
The contractor shall make a specific as
signment of the work which is included in his
contract For instance, if contractor A subcon
tracts certain work to contractor B, then con
tractor B shall have the responsibility for
making the specific assignment for the work
included in his contract [C P Exh 1 art III
pp 6-7]
If this section of the agreement is applied to the in
stant case, one may interpret the section as placing
the responsibility of awarding the scaffolding work
on the masonry subcontractors ( Contractor A
would be the general contractors Blount Brothers
and Volpe while Contractor B would be the
masonry subcontractors Anastasi and Luchetti )
Further as mentioned above the two masonry sub
contractors are not signatory to the Carpenters
agreement with AGC Consequently, Anastasi and
Luchetti were under no contractual obligation to
award the disputed work to carpenters
Although Carpenters contends that the two gen
eral contractors are the employers for determining
the work in dispute here, its contention is without
merit because the Board has held that the company
that ultimately controls and makes the job assign
ment shall be deemed the employer See Iron
Workers Local 21 (Lueder Construction) 233 NLRB
1139, 1140 (1977) Carpenters Local 895 (George A
Fuller Co) 186 NLRB 152, 153 (1970) The mason
LABORERS LOCAL 223 (ANASTASI BROS ) 863
ry subcontractors, who assigned the disputed work,
are the properly designated employers for purposes
of determining an award in this case Consequently,
because Laborers has a collective bargaining agree
ment with employers Anastasi and Luchetti which
indicates the scaffolding work is under the junsdic
tion of Laborers, and because Carpenters has no
such agreement with the Emi31oyers, we find that
this factor favors assignment of the disputed work
to the employees represented by Laborers Locals
,22 and 223
2 The Employers preferences and past
practices
The Employers have assigned the work to em
ployees represented by Laborers Locals 22 and
223 Luchetti has assigned laborers scaffolding
work at various jobsites for the past 20 years In
addition, for the past 9 years, and on over 100
projects, Anastasi has assigned the job of erecting
and dismantling scaffolding to laborers Neither
Employer has ever assigned scaffolding work to
employees represented by Carpenters The assign
ment is consistent with longstanding practice by
both Employers, and, therefore, this factor favors
an award to employees represented, by Laborers
Locals 22 and 223
, 3 Area practice
The evidence shows that the consistent practice
of masonry contractors in the Massachusetts area
has been to assign the work of erecting and dis
mantling scaffolding to employees represented by
Laborers
Carpenters contends, however that a decision
rendered on 29 April 1920, found in a book dated 1
June 1977, which is a compendium of Agreements
and Demons Rendered Affecting the Building In
dustry" (the Green Book) establishes that the
work in dispute has been historically and tradition
ally assigned to employees represented by Carpen
ters That decision states
Self supporting scaffolding over 14 feet in
height or any special design scaffolds or those
built for special purposes shall be built by the
Carpenters
The scaffolding on both projects was over 14 feet
in height
Carpenters contends further that Blount Brothers
acknowledged that it follows this Green Book of
decisions as a matter of policy and that this deci
mon covers the work in dispute Although at the
hearing a Blount Brothers employee did indeed
state that, to his knowledge Blount Brothers fol
lows the Green Book decisions he also stated that
he did not believe Blount Brothers had made any
decisions that violated the Green Book This con
tradictory testimony by an employee who also
added that he did not make all the jurisdictional as
signments nor implement the jurisdictional policy
for Blount Brothers tends to lessen the impact of
the Carpenters contention that Blount Brothers ad
mined that it abides by the Green Book
In addition, it may well be that the scaffolding
referred to in the 1920 decision is wood scaffold
mg not pipe scaffolding which was not invented
until the 1930 s Nevertheless despite the fact that
this decision may not be applicable to this dispute
due to the difference in scaffolding materials, the
decision is a factor that may be considered for pur
poses of determining the dispute The Board has
held that, in cases in which a court or other deci
mon making body has made an award of disputed
work that award may be considered in determin
mg the proper assignment of the dispute but that
award is not the determining factor of the dispute
Iron Workers Local 21, supra
Carpenters also asserts that Laborers Local 223
conceded that the work in dispute was properly
the work of Carpenters Local 33 members because
the scaffolding was over 14 feet in height This ad
mission did not come from a representative of La
borers Local 223 at the hearing, rather, it came
from the testimony of a Blount Brothers employee
Moreover, the fact that Laborers Local 223 threat
ened to strike if the work in dispute were reas
signed to Carpenters Local 33 members tends to di
minish the significance of this testimony
In view of the fact that area practice is to assign
scaffolding work to laborers despite the Green
Book decision, this decision shall not be given con
trolling weight Therefore this factor favors an
award to employees represented by Laborers
Locals 22 and 223 2
4 Economy and efficiency of operations
In addition to the erection and dismantling of
pipe scaffolding laborers perform other tasks in
volving masonry construction These other tasks
consist of (1) manually unloading various materials
involved in masonry work such as cement lime,
2 Were Chairman Dotson and Member Hunter to consider the Green
Book decision a separate factor apart from area practice they would
nonetheless reach the same ultimate conclusion that the work in dispute
should properly be awarded to employees represented by Laborers
Locals 22 and 223 Member Dennis agrees that the area practice factor
favors awarding the disputed work to employees the Laborers Locals
represent Although she would find the Green Book decision is a separate
factor favoring awarding the work to Carpenters represented employees
she believes the factors favoring awarding the work to Laborers repre
sented employees outweigh the factor favoring Carpenters represented
employees
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tools (2) carrying these materials to a stockpile
area (3) mixing the mortar to be used in the ma
sonry work (4) tending the bricklayers who actual
ly install the masonry work (5) cleaning up the
masonry areas and (6) removing construction ma
terials from the construction site The actual erec
non and dismantling of the scaffolding takes only a
few minutes If the disputed work were assigned to
employees represented by Carpenters Locals 33
and 218, the same number of laborers would still be
necessary to complete the other tasks The consid
erations of economy and efficiency thus favor an
assignment of the work in dispute to employees
represented by Laborers Locals 22 and 223
Conclusions
After considering all the relevant factors we
conclude that employees represented by Laborers
Locals 22 and 223 are entitled to perform the work
in dispute We reach this conclusion relying on the
collective bargaining agreement between the Em
ployers and Laborers the Employers preferences
and past practices, area practice, and economy and
efficiency of operations In making this determina
tion we are awarding the work to employees rep
resented by Laborers Locals 22 and 223, not to the
Unions or their members
Scope of Award -
AGC requests that the Board issue a broad work
award covering the geographic areas encompassed
in the Boston District Council of Carpenters agree
rnent with AGC This area includes more than 10
cities located in eastern Massachusetts AGC con
tends that such an award is necessary in order to
avoid repetition of similar jurisdictional claims and
attendant work stoppages at construction sites
within this area In this regard, AGC refers, inter
aim, to a Board decision issued in 1969 which
awarded similar work to laborers rather than car
penters We note that there has been only one inci
dent of actual work stoppage by Carpenters Local
33 and one threat of strike by Carpenters Local 218
in this entire geographic area Moreover, although
AGC presented evidence of Carpenters requesting
similar work on other projects there is no evi
dence showing reasonable cause to believe that
Carpenters have thus far committed any other
8(b)(4)(D) violations in pursuit of such scaffolding
work Under these circumstances and considering
that the Board s earlier decision was issued 15
years ago, we find that the evidence does not dem
onstrate a proclivity of Carpenters to engage in
further unlawful conduct with attendant work
interruptions at other jobsites involving other em
ployers unless a broad award is made here Ac
cordingly we conclude that the issuance of a
broad award is inappropriate in this proceeding
The determination is therefore limited to the par
ticular controversies that gave rise to this proceed
ing
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees of Anastasi Brothers Corporation
and G J Luchetti Inc represented by Laborers
Locals 22 and 223, Laborers International Union of
North America, are entitled to perform the work
of erecting and dismantling pipe scaffolding for the
installation of masonry work on the Lafayette
Place project in Boston, Massachusetts, and the
Malden Hospital site in Malden, Massachusetts
2 Local Unions 33 and 218 United Brotherhood
of Carpenters and Joiners of America, and Boston
District Council of Carpenters affiliated with the
United Brotherhood of Carpenters and Joiners of
America, are not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force Anastasi
Brothers Corporation, G J Luchetti Inc Blount
Brothers Corporation and Volpe Construction Co
Inc to assign the disputed work to employees rep
resented by them
3 Within 10 days from this date, Local Unions
33 and 218, United Brotherhood of Carpenters and
Joiners of America and Boston District Council of
Carpenters,' affiliated with United Brotherhood of
Carpenters and Joiners of America shall notify the
Regional Director for Region 1 in writing whether
they 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
this determination