Laborers Local 833 (Patent Scaffolding)

National Labor Relations Board - Board Decisions

Mar 21, 1990

297 N.L.R.B. 997 (N.L.R.B. 1990)

LABORERS LOCAL 833 (PATENT SCAFFOLDING) 997
Laborers' International Union of North America,
Construction and General Laborers, Local 833,
AFL-CIO and Patent Scaffolding Co. and
United Brotherhood of Carpenters and Joiners
of America, Local 422, AFL-CIO. Case 6-CD-
866
March 21, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
The charge in this Section 10(k) proceeding was
filed July 19, 1989, by Patent Scaffolding Co
(Patent) The charge alleges that the Respondent,
Laborers Local 833, violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in
proscribed activity with an object of forcing Patent
to assign certain work to employees it represents
rather than to employees represented, by Carpen-
ters Local 422 The hearing was held on August
22, 1989, before Hearing Officer Patricia J Scott'
Thereafter, Carpenters Local 422 filed a brief
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
Patent Scaffolding Co, a division of Harsco Cor-
poration, is a corporation with a place of business
in Pittsburgh, Pennsylvania, engaged in renting,
erecting, and dismantling scaffolding During the
year prior to the hearing, Patent received at its
Pennsylvania construction sites materials valued in
excess of $50,000 directly from points outside the
State of Pennsylvania
The parties stipulate, and we find, that Patent
Scaffolding Co is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Laborers Local 833 and Carpenters Local 422 are
labor organizations within the meaning of Section
2(5) of the Act
II THE DISPUTE
A Background and Facts of Dispute
Patent is a subcontractor of LVI, the general
contractor for removing asbestos from petroleum
tanks at the Ashland Oil plant in Freedom, Penn-
' Laborers Local 833 moved to quash the hearing and notice of hear-
ing After entering three exhibits Into the record It left the hearing
sylvania Patent's erections superintendent, Michael
Mitchell, testified that Patent contracted to erect
and dismantle specialty (i e, for multitrade use)
scaffolding for four vessels at the Ashland site,
which were 50-60 feet, 70 feet, 90 feet, and 140
feet in height, respectively Work began in the
second week of July 1989 Patent has about 12 em-
ployees represented by the Carpenters on its Pitts-
burgh area staff Patent and Carpenters Local 422
are party to a collective-bargaining agreement ef-
fective from June 1, 1987, to May 31, 1990, which
designated certain work, including the erecting and
dismantling of all scaffolding for Carpenters or
multitrade use, and all scaffolding more than 14
feet tall, as being within the jurisdiction of Carpen-
ters Pursuant to his usual practice, Mitchell in-
formed Carpenters Local 422 about 2 weeks in ad-
vance of starting the job so that a steward could be
present to represent the employees when it began
work
About 1 month before Patent began the Ashland
job, Steve Peycha, business agent for Laborers
Local 833, called Mitchell and told him that before
Mitchell could come to Beaver County he would
have to meet with Peycha, who would give him
employees to unload the trucks and build the scaf-
folding Mitchell told him that he would not call
him and that Laborers would not build the scaf-
folding, that the only time Laborers tend Carpen-
ters is in the mud trades and that asbestos removal
and working in powerplants has nothing to do with
the mud trades Peycha said he would "stop"
Mitchell by putting up a picket line No reference
was made in the conversation to a collective-bar-
gaining agreement between Patent and Laborers
District Council of Western Pennsylvania, of
which Laborers Local 833 is a member This
agreement, also effective from June 1, 1987, to
May 31, 1990, designated certain work as being
within the jurisdiction of the Laborers 2 Mitchell
stated that Patent does not normally employ em-
ployees represented by' the Laborers, but that it did
sign the agreement with the Laborers about 2 years
earlier for one project, the Stanley Theater renova-
tion On that occasion—the only time that Patent
used employees represented by Laborers—those
employees created stockpiles of scaffolding parts
and employees represented by Carpenters took the
2 The agreement stated "Scaffolds The erection, planking and remov-
al of all scaffolds for lathers, plasterers, bricklayers and other construc-
tion trades crafts as well as the building planking or installation and re-
moval of all staging, swinging and hanging scaffolds, including mainte-
nance thereof up to a height of three (3) 'bucks' Where self-supported
scaffolds or specially designed scaffolds are built by Carpenters, Laborers
shall tend said Carpenters on erection thereof, the dismantling of said
scaffolds, as well as preparation for foundation or mudsills for said scaf-
folds and maintenance of same shall be done by the Laborers"
297 NLRB No 162
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
parts from the piles to the places where the parts
would be used and then erected the scaffold
On the first day that Patent was at the Ashland
site, a Friday, Patent employees represented by the
Carpenters were present for 2 hours At that time,
the superintendent for LVI stopped Patent from
working because the Laborers' business agent re
moved employees represented by the Laborers
from the job and shut the work down Patent em
ployees returned to the Ashland site on the follow-
ing Monday Again, employees represented by La-
borers walked off the job, and Patent employees
were taken off the job
B Work in Dispute
The disputed work is the unloading, erecting,
and dismantling of scaffolding at the Ashland
Oil/Valvoline plant located in Freedom, Pennsyl-
vania
C Contentions of the Parties
Laborers Local 833 moved that the heanng and
the notice of heanng should be quashed because, it
contends, an agreed on method of voluntary adjust-
ment of the dispute within the meaning of Section
10(k) exists Laborers Local 833 entered into evi
dence, without any supporting testimony, the Plan
for the Settlement of Jurisdictional Disputes in the
Construction Industry (the Plan) and the procedur
al rules for the plan, and cited Operating Engineers
Local 139 (Allied Construction), 293 NLRB 604
(1989)
Patent and Carpenters Local 422 contend that
the disputed work was properly assigned to em-
ployees represented by the Carpenters based on the
Carpenters' collective-bargaining agreement with
Patent, company practice, area practice skills,
economy and efficiency of operation, safety, and a
joint board award Carpenters Local 422 also con-
tends that quashing the heanng would be mappro
pnate because there is no evidence that Patent or
itself has agreed to be bound by the plan
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 on a
method for the voluntary adjustment of the dis-
pute
Two weeks before Patent began working at the
Ashland site, Laborers Local 833 threatened to
stop Patent from doing the work with employees
represented by Carpenters Local 422 by putting up
a picket line Subsequently, on two occasions when
Patent employees represented by Carpenters Local
422 appeared at the job, Laborers Local 833 re
moved employees represented by it from the site
Accordingly, we find that reasonable cause exists
to believe that Laborers Local 833 violated Section
8(b)(4)(D) of the Act
We do not find, as contended by Laborers Local
833, that the parties have agreed on a method for
the voluntary adjustment of the dispute Laborers
Local 833 offered no testimony regarding whether
the plan is currently in effect by its own terms or
whether any of the parties are bound by it Even
assummg that the plan is in effect, and that Carpen-
ters Local 422, contrary to its denial, is bound by
the plan, there is no evidence or contention that
Patent is bound to observe the plan 3 Thus, there is
no basis for finding that there is an agreed on
method of voluntary adjustment 4 Sheet Metal
Workers Local 17 (A GC of Massachusetts), 268
NLRB 464 (1983) Allied Construction, supra, relied
on by Laborers Local 833, is distinguishable be-
cause the employer association in that case had
signed a collective-bargaining agreement that pro
vided that junsdictional disputes would be settled
in accordance with the plan Ibid
E Merits of the Dispute
Section 10(k) requires the Board to make an af
firmative award of disputed work after considering
vanous factors NLRB v Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U S 573
(1961) The Board has held that its determination in
a junsdictional dispute is an act of judgment based
on common sense and expenence, reached by bal-
ancing the factors involved in a particular case
Machinists Lodge 1 743 (J A Jones Construction),
135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of this dispute
1 Certification, collective bargaining
agreements, and joint board awards
There is no evidence that the Board has certified
either Carpenters Local 422 or Laborers Local 833
as the collective-bargaining representative for the
employees involved
Both Unions have collective bargaining agree
ments with Patent The Carpenters' agreement enti
tles employees represented by it to erect and dis
3 According to art I of the plan employers who have signed a stipula
non stating that they are willing to be bound by the plan or who are
members of an association of employers who have signed a stipulation or
who have signed a collective bargaining agreement providing for reliance
on the plan are covered by the plan There is no evidence that Patent is
covered by the plan under any of these options
4 Accordingly we deny Laborers Local 833 s motion to quash the
heanng and notice of hearing
LABORERS LOCAL 833 (PATENT SCAFFOLDING) 999
-
mantle all scaffolding for multitrade use and all
scaffolding over 14 feet tall The Laborers' agree-
ment entitles employees represented by it to erect
scaffolding up to a height of 3 "bucks" A buck
was defined by Superintendent Mitchell as 7 feet
The Laborers' agreement also entitles employees
represented by it to "tend" carpenters in the erec-
tion of specially designed scaffolds built by carpen-
ters However, the meaning of this was not devel-
oped at the hearing Undisputed testimony indi-
cates that the scaffolding in question was for multi-
trade use and was over 50 feet tall The Carpen-
ters' contract encompasses all the work at issue
The Laborers' contract clearly does not entitle the
employees represented by it to the erection work
and fails to clearly entitle it to any of the other dis-
puted work Accordingly, we find that this factor
favors an award of the disputed work to the em-
ployees represented by Carpenters Local 422
Both Mitchell and Dominick Papalia, the assist-
ant to the executive business manager of the Car-
penters' District Council of Western Pennsylvania,
testified that an AFL joint board awarded the
work in question to employees represented by the
Carpenters in the 1920s 5 We find, however, that
the joint board award has limited significance in
the absence of any rationale
2 Employer preference
Patent has assigned the disputed work to em-
ployees represented by Carpenters Local 422 and
prefers that those employees keep the assignment
We find that this factor favors an award of the dis-
puted work to employees represented by Carpen-
ters Local 422
3 Employer practice and area practice
Superintendent Mitchell testified that Patent had
done scaffolding work for 10 asbestos removal
jobs, such as the Ashland work, and that employ-
ees represented by the Carpenters had done both
the unloading and the erecting in all cases The un-
disputed testimony was that all Pittsburgh-area
scaffold erection employers used carpenters and
that, in circumstances such as those at Ashland,
carpenters unloaded, erected, and dismantled the
scaffolding We find that these factors favor an
award of the disputed work to employees repre-
sented by Carpenters Local 422
5 Laborers' Exh 2, the plan, supports this testimony A "Decision Ren-
dered April 28, 1920' in a dispute between Laborers, Bricklayers, Plas-
terers, and Carpenters stated that 'Self-supporting scaffolds over fourteen
feet in height or any special designed scaffolds or those built for special
purposes shall be built by the Carpenters
4 Relative skills, safety, and economy and
efficiency of operations
Superintendent Mitchell testified that all his car-
penter employees know how to build specialty
scaffolding He testified that if he hired employees
represented by Laborers he would have to familiar-
ize them with the equipment and then teach them
how to build the scaffolding, a process that is diffi-
cult and would extend through the entire project
Mitchell noted that it is also important that em-
ployees know what they are doing in erection and
dismantling for safety reasons because the work is
often done at considerable heights If he used em-
ployees represented by Laborers, Mitchell testified,
he would have to hire extra employees to assure
safety
Mitchell also testified that expertise is important
for efficiency and economy of operations in un-
loading scaffolding as well as erecting and disman-
tling it This is because, as employees unload parts
from the truck, they put them in the places that
they will be used rather than merely placing them
in piles He stated that use of Carpenters-represent-
ed employees reduces the number of hours it takes
to complete the project Employees represented by
the Carpenters also bring their own tools needed to
construct the scaffolding The Employer would
have to provide tools for employees represented by
the Laborers We find that these factors favor
awarding the disputed work to employees repre-
sented by Carpenters Local 422
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Carpenters
Local 422 are entitled to perform the work in dis-
pute We reach this conclusion relying on the col-
lective-bargaining agreements, employer prefer-
ence, employer and area practice, relative skills,
safety, and economy and efficiency of operations
In making this determination, we are awarding the
work to employees represented by Carpenters
Local 422, 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
following Determination of Dispute
1 Employees of Patent Scaffolding Co, repre-
sented by United Brotherhood of Carpenters and
Joiners of America, Local 422, AFL-CIO, are enti-
tled to perform the unloading, erecting, and dis-
mantling of scaffolding at the Ashland
1000

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Oil/Valvoline plant located in Freedom, Pennsyl
vama
2 Laborers' International Union of North Amer-
ica, Construction and General Laborers, Local 833,
AFL-CIO is not entitled by means proscnbed by
Section 8(b)(4)(D) of the Act to force Patent Scaf-
folding Co to assign the disputed work to employ-
ees represented by it
3 Within 10 days of this date, Construction and
General Laborers Local 833 shall notify the Re
gional Director for Region 6 in wntmg whether it
will refrain from forcing the Employer, by means
proscnbed by Section 8(b)(4)(D), to assign the dis-
puted work in a manner inconsistent with this de-
termination