Masonry Magazine February 1985 Page. 38
NLRB DECISION
ers is a member of AGC and has authorized AGC to enter into collective-bargaining agreements with both Carpenters Local 33 and Laborers Local 223. Blount Brothers subcontracted the masonry work for the project to the Filloramo Construction Company (not a party to this case), which was later replaced by Anastasi. The masonry subcontract includes the masonry work as well as the erecting of scaffolding for the installation of masonry 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 assigned the scaffolding work to members of Laborers 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 discontinue 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 International representative.
In November 1983 and January 1984 the general secretary-treasurer of Laborers Local 223 advised Blount Brothers that, if the scaffolding assignment were taken away from employees represented by Laborers Local 223, he would pull the laborers off the project. In addition, Carpenters Local 33 is pursuing a claim against Blount Brothers before the American Arbitration Association that Blount Brothers violated its agreement with it by allowing the subcontractor to use laborers for the scaffolding work rather than Carpenters.
2. Case 1-CD-715
The second controversy in this proceeding involves 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, Luchetti, would be assigning the scaffolding work to members of Laborers Local 22.
On 24 September 1984 Boston District Council of Carpenters submitted a letter asking the Board to stay its proceedings pending a ruling by the arbitrator. On 27 September 1984 the Charging Party filed an opposition. 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 decision." 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 dispute 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) Carpenters itself objects to the intervention; (2) Carpenters designation of "the Laborers Union as seeking to intervene does not clearly indicate whether 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 dispute, but only that such a method "may exist." In light of the foregoing, we deny the request to stay our proceedings.
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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 business agent would be directed to withhold Carpenters 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 scaffolding for this project, Carpenters Local 218 did not engage in an actual work stoppage.
B. Work in Dispute
The disputed work involves 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.
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' collective-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 employees represented by Carpenters Locals 33 and 218 on the basis of the collective-bargaining agreement between the general contractors and Carpenters 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 threatened 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 on method for voluntary resolution of this dispute.
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-on method of voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative 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 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 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 representative for any of the employees involved herein. Both Carpenters and Laborers insist that their collective-bargaining agreements with AGC award jurisdiction over the disputed work to employees represented by their Unions. The Laborers agreement with AGC, to which both the general contractors (Blount Brothers and Volpe) and the masonry subcontractors (Anastasi and Luchetti) are signatory, specifically mentions the scaffolding work under the Laborers' "Jurisdictional Claims" (C.P. Exh. 2, app. A., p. 24):