Laborers Local 271 (New England Foundation)

National Labor Relations Board - Board Decisions

Mar 31, 2004

341 N.L.R.B. 533 (N.L.R.B. 2004)

LABORERS, LOCAL 271 (NEW ENGLAND FOUNDATION CO.) 533
Laborers International Union of North America, Lo-
cal 271, AFL–CIO and New England Founda-
tion Co., Inc. and United Brotherhood of Car-
penters and Joiners of America, Local No. 94.
Case 1–CD–1036
March 31, 2004
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
The charge in this proceeding was filed October 15,
2003,1 by New England Foundation Co. (the Employer),
alleging that the Respondent, Laborers International Un-
ion of North America, Local 271, AFL–CIO (the Labor-
ers or Laborers Local 271), 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 the United Brotherhood of
Carpenters and Joiners of America, Local 94 (the Car-
penters or Carpenters Local 94). The hearing was held
December 17 before Hearing Officer A. Susan Lawson.
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 re-
cord,2 the Board makes the following findings.
I. JURISDICTION
The Employer, a Massachusetts corporation, is a con-
struction company with its principal office in Quincy,
Massachusetts, which annually purchases, from entities
outside the Commonwealth of Massachusetts, goods and
services valued in excess of $50,000, and has an annual
volume of business in excess of $1 million. The parties
stipulate, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and that the Laborers and the Carpenters are la-
bor organizations within the meaning of Section 2(5) of
the Act.

1 All dates are in 2003, unless otherwise specified.
2 We grant the Employer’s and the Carpenters’ separate, unopposed
motions to correct the transcript.
We deny as moot the Employer’s March 3, 2004 motion for an ex-
pedited decision in this matter, responded to by the Carpenters on or
about March 5, 2004. Cases alleging violations of Sec. 8(b)(4)(D) are
accorded statutory priority in Board processing pursuant to Sec. 10(l) of
the Act, and we have so treated this case.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a subcontractor on the rehabilitation
of the Washington Bridge in Providence, Rhode Island.
The Employer’s project consists of the placement of 14
drill shafts/caissons (7 in the river, and 7 on dry land
adjacent to the river) to provide support for the bridge.
To construct these caissons, first, a large vibratory ham-
mer is used to drive a metal tube or casing into the
ground until it hits hard rock (estimated as a depth of
approximately 120–140 feet in this project). Next, a
large drill is used to bore 7–20 feet further into the rock,
and the ground-up rock is vacuumed upward and out of
the casing. The hollow casing and the bore hole are then
filled with concrete. By letter dated June 19, the Em-
ployer assigned the drilling and concrete-placement work
to employees represented by the Laborers.3 Neverthe-
less, Carpenters Local 94 claims that the employees it
represents are entitled to the work.4
Over the course of several months after the Employer
assigned the work on the project, the parties attempted,
without success, to negotiate a settlement to the dispute.
On September 19, the Carpenters filed a request for arbi-
tration with the American Arbitration Association
(AAA),5 believing that the Laborers had orally agreed to
such arbitration.6 Nevertheless, the Laborers’ represen-
tative, Edward DiRissio, has categorically denied that
any such agreement was reached, and Laborers Local
271 has steadfastly insisted that it is not bound by the
outcome of the arbitration proceeding. Laborers Local
271 has asked to participate in the arbitration hearing for
the limited purpose of presenting evidence to protect its
represented employees’ asserted rights to the work in
question, but has reiterated in writing the Union’s unwill-
ingness to be bound by the outcome.
On or about October 10, the Laborers’ representative,
Michael Sabitoni, telephoned the Employer’s vice presi-
dent, John Roma, and stated that, if the work assignments
were changed, the Laborers would have no choice but to
3 Other work on the project, including that of driving the metal cas-
ings into the ground and building frameworks to steady the casings in
the water, was assigned to employees represented by the Carpenters
and is not in dispute.
4 Prior to the hearing, it appeared that Carpenters Local 94 claimed
the drilling work only with respect to the caissons in the water. At the
hearing, however, it became clear that Carpenters Local 94 disputes the
assignment of all the drilling work, both on land and in the water.
5 The Carpenters’ collective-bargaining agreement with the Em-
ployer provides for tripartite arbitration in the case of a work assign-
ment dispute. The Laborers’ contract provides only for bilateral arbi-
tration.
6 Carpenters Local 94 acknowledges that it became aware of the La-
borers’ unwillingness to proceed to arbitration in about mid-October.
341 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
picket or strike the job. In addition, DiRissio testified
that, upon hearing rumors that the disputed work would
be reassigned to employees represented by the Carpen-
ters, he tried repeatedly to reach Roma to discuss the
issue. Eventually, on an unspecified date in October,
DiRissio went to the worksite, where he informed Project
Superintendent Shane O’Neill that Laborers Local 271
would picket the project if the employees it represented
were laid off because the disputed work was reassigned
to employees represented by the Carpenters. On October
15, the Employer filed the Board charge at issue. As of
the time of the hearing, the disputed work was being per-
formed in accordance with the Employer’s original as-
signment.
B. Work in Dispute
The disputed work involves work associated with the
drilling and placement of concrete for drill shafts/cais-
sons on the Providence River Washington Bridge reha-
bilitation project in Providence, Rhode Island.
C. Contentions of the Parties
Carpenters Local 94 contends that the Laborers’
threats of strikes and picketing were a sham and that the
Employer colluded with the Laborers in encouraging
them to make such threats, in order to obtain a Board
determination that the work belongs to employees repre-
sented by the Laborers. Carpenters Local 94 further con-
tends that the parties have agreed upon tripartite arbitra-
tion as a voluntary method for resolving this dispute.
Thus, Carpenters Local 94 argues that the 10(k) proceed-
ing must be dismissed. Carpenters Local 94 makes no
argument as to the merits of the dispute.
The Employer contends that reasonable cause exists to
believe that the Laborers’ threats were serious and genu-
ine, and that, based on Board precedent, the evidence is
insufficient to demonstrate otherwise. The Employer
further asserts that the parties have not agreed on a
method for voluntary resolution of the dispute: Laborers
Local 271 clearly denies that it has agreed to be bound
by the Carpenters’ arbitration, the Employer has no rec-
ollection of the Laborers agreeing during settlement dis-
cussions to be bound by such arbitration, and there is no
other basis for applying the terms of the Carpenters’ arbi-
tration provision to the Laborers. As to the merits of the
dispute, the Employer argues that the disputed work
should be awarded to the employees represented by the
Laborers, based on the collective-bargaining agreements,
its own preference and past practice, industry practice,
relative skills and safety, and economy and efficiency of
operations.
Laborers Local 271 acknowledges that its agents
threatened proscribed job actions if the work assignments
on the project were changed. It asserts that these state-
ments were not sham threats for the purpose of invoking
the Board’s 10(k) jurisdiction, but were genuinely moti-
vated by its concern that the employees it represents
would suffer layoffs as a result of the arbitration. Labor-
ers Local 271 further contends that it has not agreed to
voluntary arbitration that would be binding on it, that it is
not signatory to the Carpenters’ contract providing for
tripartite arbitration, and that it has stated unequivocally
that it is unwilling to be bound by the AAA proceeding.
On the merits, Laborers Local 271 argues that the work
in dispute should be awarded to the employees it repre-
sents on the basis of the collective-bargaining agree-
ments, the Employer’s preference and past practice, area
practice, relative skills and safety, and economy and effi-
ciency of operations.
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
satisfied that: (1) there are competing claims for the
work; (2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute.7
Initially, we find that there are competing claims for
the work associated with drilling and placement of con-
crete for caissons on this project. Laborers Local 271
has at all times claimed this work for the employees it
represents, and these employees have been performing
the work. The scope of the Carpenters’ claim to the
work has broadened since the dispute first arose, but it
was clear at the hearing that it claims the work, both in
the water and on land, for the employees it represents.
We also find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated by the Labor-
ers’ threats of proscribed job actions. The Carpenters’
argument that these threats were a sham and the product
of collusion with the Employer relies on evidence that
the Carpenters’ own attorney accused the Employer and
the Laborers of such collusion during settlement discus-
sions. Contrary to the Carpenters’ characterization, the
evidence does not demonstrate that any individual admit-
ted to collusion.8 In the absence of affirmative evidence

7 Carpenters Local 275 (Lymo Constuction Co.), 334 NLRB 422,
423 (2001); Teamsters Local 259 (Globe Newspapers Co.), 327 NLRB
619, 622 (1999); Laborers Local 113 (Super Excavators), 327 NLRB
113, 114 (1998).
8 Carpenters Local 94 also relies on a statement by the Laborers’ at-
torney at a December 15 settlement discussion that he was “going to go
with the 10(k) Hearing to try and get this done [his] way.” That state-
ment was made 2 full months after the charge had been filed regarding
the Laborers’ threats. Thus, it indicates nothing about the Laborers’

LABORERS, LOCAL 271 (NEW ENGLAND FOUNDATION CO.) 535
that a threat to take proscribed action was a sham or was
the product of collusion, the Board will find reasonable
cause to believe that the statute has been violated. La-
borers (E & B Paving), 340 NLRB No. 150, slip op. at 3,
fn. 4 (2003) (citing Lancaster Typographical Union No.
70, 325 NLRB 449, 450–451 (1998)).
Finally, we conclude that the parties have not agreed
on a method for the voluntary adjustment of the dispute.
The tripartite arbitration provision contained in the Car-
penters’ collective-bargaining agreement with the Em-
ployer does not bind the Laborers, and the Laborers’ own
agreement does not provide for tripartite arbitration. The
record does contain evidence that the Unions discussed
the possibility of arbitration during settlement negotia-
tions. Nevertheless, Laborers Local 271 denies that it
agreed to be bound by such arbitration, and the Em-
ployer’s testimony lends support to that denial. More-
over, it is undisputed that Laborers Local 271 has, more
recently, stated repeatedly and unambiguously its refusal
to be bound by the arbitrator’s decision.9 Under these
circumstances, we find that there is no voluntary agree-
ment that would bind all the parties.
Accordingly, we conclude that the dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia 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 ex-
perience, reached by balancing 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 de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
Neither Union has been certified to represent the em-
ployees who are performing the disputed work, but the
Employer has entered into collective-bargaining agree-
ments with both Unions. The Laborers’ agreement ex-
pressly applies to “[c]onstruction of shafts [and] cais-
sons” and covers, inter alia, “[d]rilling and blasting,
mucking and removal of material from the tunnels and

motive in making the threats, only its intent to continue the process that
began when the Employer filed the charge at issue.
9 The Employer has moved to reopen the record for the purpose of
admitting into evidence a letter from the arbitrator, dated February 3,
2004, allowing representatives of the Laborers to testify in the arbitra-
tion hearing if called as witnesses and accepting Laborers Local 271’s
position that it will not be not bound by the arbitrator’s decision. In
view of our disposition, we do not pass on the Employer’s motion.
shafts” and “[p]ouring . . . of concrete in any tunnel or
shaft.” The agreement also applies to “footings and
foundations for bridges” and “dumping of concrete for
trem[i]e work over water on caissons” and establishes
wage rates applicable to caisson construction, including
both drilling and concrete-placement work. In contrast,
the Carpenters’ agreement refers without any further
detail to jurisdiction over “caisson and cofferdam con-
struction” and contains no reference to drilling, place-
ment of concrete, or applicable wages for such work.
Because the Laborers’ agreement expressly and specifi-
cally covers the work in dispute, while the Carpenters’
agreement refers in a much more limited and general way
to caisson work, we find the factor of collective-
bargaining agreements tends to favor awarding the work
in dispute to the employees represented by the Labor-
ers.10
2. Employer preference and past practice
The Employer prefers to assign the disputed work, and
has assigned drilling work and placement of concrete
involving caissons, both on this project and in the past, to
its employees represented by the Laborers. The Em-
ployer has not, in the past, assigned such work to its em-
ployees represented by the Carpenters. This factor sup-
ports awarding the work in dispute to the employees rep-
resented by the Laborers.
3. Area and industry practice
The Employer routinely assigns drilling work and
placement of concrete in caisson construction in New
England to the employees represented by the Laborers,
as do other New England companies.11 The Employer’s
assignment of the work on this project was based on its
analogous assignment of work on recent and ongoing
projects near the site of this project. The Employer’s
vice president, Roma, acknowledged that different prac-
tices are followed in New York and sometimes in Con-
necticut.12 We find that the factor of area practice sup-
ports the Employer’s current assignment of the work in
dispute to employees represented by the Laborers. The
limited evidence presented regarding industry practice,
10 Chairman Battista would not rely on the factor of collective-
bargaining agreements. In his view, the language in the Carpenters’
agreement is sufficient to cover the work in dispute. Accordingly, he
finds that this factor does not clearly favor an award to either group of
employees.
11 In 1999, the business agent for a Carpenters union in Connecticut
questioned the Employer’s assignment of caisson-related work to em-
ployees represented by the Laborers, but after Roma explained the
Respondent’s practice with such assignments, the business agent did
not pursue the matter.
12 Roma also testified regarding one project in Boston on which the
Carpenters and the Laborers negotiated an agreement to use a compos-
ite crew.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
however, does not clearly favor an award to either group
of employees.
4. Relative skills, training, and safety
The record indicates that employees represented by the
Laborers have consistently performed caisson-related
drilling and concrete-placement work, and that, as a re-
sult, these employees have significant skills and training
in this work. Because the drilling work is potentially
quite dangerous, according to the Employer, greater ex-
perience translates into greater ability to perform this
work safely. Roma testified that he does not know
whether the employees represented by the Carpenters
have the requisite skills and experience to perform the
work safely. While it appears that neither group of em-
ployees has a great deal of experience performing the
water-based drilling or concrete placement, the record
establishes that such work involves the same skills as the
land-based drilling and concrete placement, in which the
employees represented by the Laborers are more experi-
enced. Thus, this factor favors awarding the disputed
work to the employees represented by the Laborers.
5. Economy and efficiency of operations
Roma testified that it would be more efficient for the
employees represented by the Laborers to perform all of
the drilling work because employees could be moved
from water-based work to land-based work and vice
versa. This testimony, however, appears irrelevant in
light of the Carpenters’ present claim to both land and
water work, as the employees represented by the Carpen-
ters could similarly be moved between land and water
work.
Roma further testified that the employees represented
by the Laborers have experience in drilling and concrete-
placement work that would allow them to perform the
disputed work more efficiently than the less-experienced
employees represented by the Carpenters. Because this
evidence relates to the employees’ relative skills, train-
ing, and safety, which we have already considered, we
find that this factor does not weigh in favor of either
group of employees.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Laborers International
Union of North America, Local 271, AFL–CIO, are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the factors of collective-bargaining
agreements, employer preference and past practice, area
practice, and relative skills, training, and safety.
In making this determination, we are awarding the
work to employees represented by the Laborers, not to
that Union or its members. The determination is limited
to the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of New England Foundation Co., Inc., rep-
resented by Laborers International Union of North Amer-
ica, Local 271, AFL–CIO, are entitled to perform work
associated with the drilling and placement of concrete for
drill shafts/caissons on the Providence River Washington
Bridge rehabilitation project in Providence, Rhode Is-
land.