Laborers (Paschen Contractors)

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 327 (N.L.R.B. 1984)

LABORERS (PASCHEN CONTRACTORS)
Laborers' District Council of Western Pennsylvania,
a/w Laborers' International Union of North
America, AFL-CIO and Paschen Contractors/-
Dick Enterprises' and Pile Drivers Local Union
No. 2264 of the Carpenters District Council of
Western Pennsylvania, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
Case 6-CD-788
30 April 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
The charge in this Section 10(k) proceeding was
filed 27 October 1983 by the Employer, alleging
that the Respondent, Laborers, violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to employees rep-
resented by the Pile Drivers. The hearing was held
14 November 1983 before Hearing Officer Thomas
R. Davies.
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
Paschen Contractors, an Illinois corporation, and
Dick Enterprises, a Pennsylvania corporation, are
engaged as a joint venture in the construction of
the Mt. Lebanon Tunnel subway project under a
contract with the Port Authority of Allegheny
County (the Port Authority). During the 12
months preceding the date of the hearing, this joint
venture purchased and received goods and materi-
als valued in excess of $50,000 directly from out-
side the Commonwealth of Pennsylvania. The par-
ties stipulate, and we find, that the Employer is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Laborers and
the Pile Drivers are labor organizations within the
meaning of Section 2(5) of the Act.
I The notice of hearing and the hearing officer's report mistakenly
refer to the Employer as Pachen Contractors/Dick Enterprises.
270 NLRB 59
II. THE DISPUTE
A. Background and Facts of Dispute
In 1981 the Port Authority awarded the Em-
ployer the contract to construct the Mt. Lebanon
Tunnel, which will become part of an integrated
subway system connecting the city of Pittsburgh
and the surrounding areas. The Employer's work-
ers utilize the "cut and cover" method to excavate
the large entrances at each end of the tunnel and to
provide space for the necessary ventilation equip-
ment. The method entails installing wooden slats
known as lagging behind vertical piles implanted in
the ground to prevent the earth from caving in.
Prior to commencing construction, the Employer
conferred with Laborers' and Pile Drivers' repre-
sentatives. The Laborers and Pile Drivers each
claimed the lagging work on the project, but the
Employer did not assign that work at the meeting.
In early October 1983 a Pile Drivers' representa-
tive informed the Employer's project manager that
the Pile Drivers would take whatever action was
necessary to ensure that the Employer assigned the
lagging work to employees represented by the Pile
Drivers. On 19 October 1983 the Employer as-
signed the lagging work to employees represented
by the Laborers. On 24 October 1983 the Employ-
er advised the Laborers that it might reassign the
lagging work to employees represented by the Pile
Drivers. On 25 October 1983 the Laborers' presi-
dent notified the Employer that if the Employer re-
assigned the lagging work the Laborers would
"take the necessary action which shall include but
not be limited to picketing" the project to retain
that work.
Employees represented by the Laborers contin-
ued to perform lagging work. Lagging work has
been completed at the south end of the tunnel.
Considerable lagging work remains at the north
end of the project.
B. Work in Dispute
The disputed work consists of the loading, hook-
ing-on, signaling, handling, and installing of lagging
at the Mt. Lebanon Tunnel project in Mt. Leba-
non, Pennsylvania.
C. Contentions of the Parties
The Employer and the Laborers contend that
the work in dispute should be awarded to employ-
ees represented by the Laborers based on consider-
ations of employer preference and past practice; in-
dustry and area practice; and provisions of the ap-
plicable collective-bargaining contracts. The Em-
ployer further contends that such an assignment
will result in greater economy, efficiency, and
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
safety of operations. The Laborers urges that the
Board enter a broad order awarding the type of
lagging work in dispute to employees it represents
wherever its and the Pile Drivers' geographical ju-
risdictions coincide.
At the hearing the Pile Drivers' counsel moved
to quash the notice of hearing on the grounds that
the Pile Drivers had disclaimed the disputed work.
After making that motion, the Pile Drivers' counsel
left the hearing room and did not return. The Pile
Drivers did not file a posthearing brief.
D. Applicability of the Statute
As set forth above, it is uncontroverted that the
Laborers demanded the disputed work and threat-
ened to picket the project in support of its demand
if the Employer reassigned the work to employees
represented by the Pile Drivers. Based on the fore-
going and on the record as a whole, we find rea-
sonable cause to believe that an object of the La-
borers' action was to force or require the Employ-
er to continue to assign the disputed work to em-
ployees it represents.
The Employer and the Laborers agree that there
is no agreed method for the voluntary adjustment
of this dispute to which all the parties are bound.
The record discloses no evidence to the contrary.
The Pile Drivers contends, however, that this
proceeding should be dismissed because it effec-
tively disclaimed the disputed work. 2 The Pile
Drivers' counsel initially represented that the Pile
Drivers disclaimed any interest in performing the
disputed work at the Mt. Lebanon Tunnel project.
Subsequently, the Pile Drivers' counsel limited the
disclaimer to the lagging work at the south end of
the tunnel and expressly reserved the Pile Drivers'
right to claim the identical lagging work at the tun-
nel's north end.
The 10(k) notice of hearing described the work
in dispute as the lagging work "at the Mt. Lebanon
Tunnel Project." The construction of the north end
of the tunnel, including the necessary lagging
work, is part of that project. The Employer and
Laborers agree that the Employer's original award
of the lagging work to the Laborers covered the
entire project. At the prejob conference the Pile
Drivers demanded the disputed work for the entire
project.
The Mt. Lebanon Tunnel project encompasses
the lagging work at both the north and south ends
of the tunnel. Therefore, we find that the Pile
Drivers' renouncing lagging work for only a por-
s The Board has held that an effective renunciation of the work in dis-
pute dissolves the jurisdictional dispute. See Sheet Metal Workers Local 55
(Gilbert L. Phillips), 213 NLRB 479, 480-481 (1974); Laborers Local 935
(C & S Construction Co.), 206 NLRB 807, 808 (1973).
tion of the project is an attempt to avoid an author-
itative decision on the merits, Electrical Workers
IBEW Local 701 (Argonne National Laboratory),
255 NLRB 1157, 1160 (1981), and does not consti-
tute an effective disclaimer of interest in the work.
Operating Engineers Local 825 (Cruz Contractors),
239 NLRB 490, 490-492 (19 7 8).S Such an empty
disclaimer cannot be given effect and, consequent-
ly, the Pile Drivers' motion to quash the notice of
hearing is denied.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for 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. Certification and collective-bargaining
agreements
No party claims that either Union is certified as
the collective-bargaining representative of a unit of
the Employer's employees. Accordingly, this factor
is not helpful in resolving this dispute.
The Employer is a member of the Constructors
Association of Western Pennsylvania, which has
collective-bargaining agreements with the Laborers
and the Pile Drivers. The Pile Drivers' contract
specifies that employees represented by the Pile
Drivers will perform lagging work "used in and
for foundations." Expert testimony indicated, how-
ever, that subway tunnels and entrances do not
have foundations within the accepted meaning of
that word in the construction industry. We find the
Pile Drivers' contractual claim without merit. The
Laborers' contract does not expressly refer to the
assignment of lagging work. However, the classifi-
s Thus, Laborers Local 66 (Georgia-Pacific Corp.), 209 NLRB 611
(1974), is inapposite. In Georgia-Pacific, the Union's disclaimer of interest
extended to all the work at issue in the 10(k) proceeding. In these cir-
cumstances, Chairman Doston finds it unnecessary to pass on the con-
tinuing validity of Georgia-Pacific.
328
LABORERS (PASCHEN CONTRACTORS)
cation of labor set forth in the addendum to that
contract does include a reference to "sheeters and
shorers," and the record discloses that sheeting and
shoring is synonomous with lagging. We find the
Laborers' contract is sufficiently broad to include
the work in dispute and, to that limited extent, the
contract favors assignment of the lagging work to
employees represented by the Laborers.4
2. Employer's past practice and preference
The Employer presented evidence that it had uti-
lized employees represented by the Laborers to
handle and install lagging on previous jobs, at least
two of which were tunnel projects. We find that
these factors favor awarding the disputed work to
employees represented by the Laborers.
3. Area and industry practice
The Employer and the Laborers maintained that
in the construction industry lagging work in con-
nection with a cut and cover excavation is normal-
ly performed by employees represented by the La-
borers. At the hearing the Laborers introduced two
prior Board decisions 5 and a decision of the Na-
tional Joint Board and Impartial Jurisdictional Dis-
putes Board where the employers and the National
Joint Board awarded lagging work in the construc-
tion of several subways to the Laborers. We find
that the predominant industry practice favors an
award of the disputed work to employees repre-
sented by the Laborers.
The Mt. Lebanon Tunnel is the second subway
project in the Pittsburgh area. In an almost identi-
cal work dispute between these Unions during the
construction of the first portion of the Pittsburgh
subway, the employer assigned the lagging work to
employees represented by the Laborers. 6 We find
that area practice, at least to a limited extent,
favors the assignment of the disputed work to em-
ployees represented by the Laborers.
4. Relative skills and safety considerations
The Employer concedes that the employees rep-
resented by the Laborers and the Pile Drivers pos-
sess the requisite skill to perform the disputed
work. We therefore find that this factor does not
favor awarding the disputed work to either group
of employees.
The Employer's witness testified that an award
of the disputed work to employees represented by
the Pile Drivers would result in more employees in
a confined area near heavy equipment and possibly
See also Laborers (Anjo Construction Co.), 265 NLRB 186 (1982).
Anjo Construction Co., 265 NLRB 186 (1982); Laborers {Fruin-Colnon
Corp.), 241 NLRB 126 (1979).
6Anjo Construction Co., 265 NLRB 186 (1982).
unstable embankments and thus increase the likeli-
hood of injuries. Accordingly, we find that safety
considerations favor an award of the disputed work
to employees represented by the Laborers.
5. Economy and efficiency of operations
The construction-site employees unload the lag-
ging, cut the lagging to size, trim the face of the
excavation, install and backfill behind the lagging,
and, finally, remove the lagging. At the time of the
hearing laborers did all lagging work and per-
formed other jobs on the construction site. Accord-
ing to unrefuted testimony, the Pile Drivers sought
only to install and remove the lagging. Thus, if em-
ployees represented by the Pile Drivers were to
perform the work they claim, the Employer would
still need the present complement of laborers to
perform the other lagging work. Consequently, an
award of the work to employees represented by
the Pile Drivers would result in two different
crews performing related work, thereby leaving
employees standing idle during the successive
stages of the lagging process. Further, the nature of
the disputed work is unskilled and, while laborers
are so classified, pile drivers are classified as skilled
workers. Therefore, if the Board awarded the dis-
puted work to employees represented by the Pile
Drivers, the Employer would have to employ
more workers and use skilled employees to per-
form unskilled lagging work. Accordingly, we find
that the factors of economy and efficiency of oper-
ations favor an award of the disputed work to em-
ployees represented by the Laborers.
Conclusion
After considering all the relevant factors, we
conclude that employees represented by the Labor-
ers are entitled to perform the work in dispute. We
reach this conclusion primarily relying on the Em-
ployer's past practice and preference, the fact that
such an assignment is consistent with the predomi-
nant industry and area practice, and the fact that
such an assignment results in greater efficiency,
economy, and safety of operations. In making this
determination, we are awarding the work to em-
ployees represented by the Laborers, not to that
Union or its members.
Scope of the Award
The Laborers requests that the Board issue a
broad award assigning the disputed work to em-
ployees it represents on all jobsites where the terri-
torial jurisdictions of the Pile Drivers and the La-
borers coincide, contending that such an order is
necessary to avoid a repetition of similar jurisdic-
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional work disputes and the ensuing unlawful at-
tempts to coerce the assignment of that work.
Normally, 10(k) awards are limited to the jobsite
or sites where the unlawful 8(b)(4)(D) conduct oc-
curred or was threatened. There are two prerequi-
sites for a broad areawide award: (1) there must be
evidence that the work in dispute has been a con-
tinuous source of controversy in the relevant geo-
graphical area and that similar disputes may recur;
and (2) there must be evidence demonstrating the
offending union's proclivity to engage in further
unlawful conduct in order to obtain work similar
to that in dispute. Electrical Workers IBEW Local
104 (Standard Sign & Signal Co.), 248 NLRB 1144,
1148 (1980).
The records shows a single prior dispute be-
tween the Laborers and the Pile Drivers over the
work in dispute. Further, it was the Laborers' con-
duct, not the Pile Drivers' actions, that resulted in
the filing of the unfair labor practice charge and
the institution of this 10(k) proceeding. See Stand-
ard Sign & Signal Co., 248 NLRB at 1148. Finally,
while the Pile Drivers has expressed an interest in
similar work that becomes available in the future,
there is no evidence that the Pile Drivers will
likely resort to unlawful means to claim that work.
See Ironworkers Local 3 (Spancrete Northeast), 243
NLRB 467, 470 (1979). Under these circumstances,
we find that a broad order is not warranted. Ac-
cordingly, the determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Paschen Contractors/Dick Enter-
prises represented by Laborers' District Council of
Western Pennsylvania, a/w Laborers' International
Union of North America, AFL-CIO, are entitled
to perform the loading, hooking-on, signaling, han-
dling, and installing of lagging at the Mt. Lebanon
Tunnel jobsite located in the Allegheny County,
Pennsylvania.
330