Masonry Magazine May 1969 Page. 12
NLRB Decision
(Continued from page 11)
General Masonry is a member of the Masonry Contractors Association which has a collective-bargaining agreement with the Laborers. This agreement does not provide that the signatories submit jurisdictional disputes to the National Joint Board or abide by its decisions. Under this contract the work of erecting and dismantling all scaffolding is within the jurisdiction of the Laborers.
General Masonry began doing masonry work on the college buildings, using some scaffolding. On December 12, 1968, before General Masonry had erected any scaffolding over 14 feet, Talbert and Carr, Carpenter's Business Agent and Assistant Business Agent, respectively, spoke to Reece, Blount's construction superintendent about the future assignment of erecting and dismantling scaffolding over 14 feet high. According to Reece, Talbert told him that if General Masonry built such scaffolding with laborers, "we will have to shut the job down," asserting that Article XX or the ACG Carpenters contract obligated Blount to require its subcontractors to be bound to the work jurisdiction decisions of the National Joint Board, particularly the 1920 Joint Board's award involving scaffolding. While Talbert and Carr both acknowledge holding a conversation with Reece wherein they made reference to Article XX and the National Joint Board awards, both denied that Talbert threatened to shut down the job unless carpenters were assigned the work in dispute.
The Carpenters has never submitted the instant dispute to the National Joint Board for decision, but did file a breach of contract action against Blount which resulted in a District Court Order to arbitrate the matter.
B. The Work in Dispute
The work in dispute is the erecting, and dismantling of steel tubular section scaffolds above the height of 14 feet at the Lamar State College of Technology construction project at Beamount, Texas.
C. Contentions of the Parties
Respondent contends that it did not violate Section 8(b)(4)(D). It denies making a threat to shut down the job, and asserts that it was merely notifying Blount that under the AGC-Carpenters contract Blount was bound to require its subcontractor, General Masonry, to abide by the National Joint Board award. Respondent also argues that even if a threat should be found to have been made, the Notice of Hearing should be quashed since under the contract between the AGC and Carpenters an agreed-upon method for settlement exists. However Respondent states that if the Board finds reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method of settlement, Respondent does not request the Board to make a decision assigning such work to it and the Board may award this work to General Masonry's employees represented by the Laborers.
Blount and General Masonry contend that Respondent violated Section 8(b)(4)(D) by Talbert's threat to Reece to shut down the job. Blount further contends that there is no agreed-upon method to settle the dispute since General Masonry, the assigning party, is not bound to submit disputes to the Joint Board or to follow its decision. Laborers claims the work in question.
D. Applicability of the Statute
Before the Board may proceed with a determination of the 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. The testimony of Reece supporting such a finding was contradicted by Talbert and Carr. However, the Board is not charged with finding in a jurisdictional dispute context that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation. Without ruling on the credibility of the testimony in issue, we find that such reasonable cause exists, and that the dispute is properly before the Board for determination under Section 10(k) of the Act.2
We find without merit Respondent's claim that since it was merely seeking to enforce Section XX of the AGC-Carpenters contract with Blount, its conduct was not for an objective proscribed by Section 8(b)(4)(D). The contractual aspect of Respondent's assertion was pursued by litigation for breach of contract. The concurrent objective of the Carpenters was to force or require the assignment of the disputed work to carpenters represented by Respondent rather than to employees represented by the Laborers. The fact that one basis for Respondent's claim was its contract with Blount does not detract from the jurisdictional nature of the dispute.
Further, we find without merit Respondent's contention that the National Joint Board constituted an agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k). There is no evidence that General Masonry, which is not a member of the AGC, has any current contractual relationship with the Respondent, or that through its contract with Blount, General Masonry agreed to submit to the National Joint Board or be bound by its decisions. In addition, there is no evidence that the current dispute was submitted to the Joint Board by any of the parties.
E. Merits of the Dispute
Carpenters concedes that if the parties are not required to submit the dispute to the Joint Board for determination, the Board may award the work to employees of General Masonry represented by the Laborers. Accordingly, we shall determine the existing jurisdictional controversy by awarding to General Masonry's employees represented by the Laborers rather than to employees represented by the Carpenters, the work of erecting and dismantling the steel tubular section scaffolds above the height of 14 feet at the Lamar State College of Technology Construction project at Beaumont, Texas. The present determination is limited
Jefferson County, Alabama and Vicinity Carpenter District Council (8
W Masonry, Inc.) 173 NLRB No. 190.
Local 19, International Longshoremen's Association, AFL-CIO (Marine
Association of Chicago), 151 NLRB 89, 94-95: Local 496, United Brother-
hood of Carpenters and Joiners of America AFL-CIO (V. L. Williams and
C., Inc.), 151 NLRB 758, 760-761.
United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Local 1622 (O. R. Karst), 139 NLRB 591, 594; Local 562, United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO (Layne-Western Company), 158
NLRB 695, 698-699 Local 19 Wood, Wire, & Metal Lathers International
Union, AFL-CIO (Jacksonville Tire Company, Inc.) 125 NLRB 138, 143.
See also, International Union of Operating Engineers, Local 12 (George E.
Miller Electric Co.), 144 NLRB 9: International Brotherhood of Electric
Workers, Local 728 (Ebasco Services, Inc.), 153 NLRB 873, 876 footnote 7.
Layne-Western Company, op cit. supra.