Masonry Magazine February 1985 Page. 39
Erection, planking and removal of all scaffolds
Erection, planking and removal of all scaffolds for lathers, plasterers, bricklayers, masons and other construction trades crafts. Building, planking or installation and removal of all staging, swinging and hanging scaffolds, including maintenance thereof.
In addition, subcontractors Anastasi and Luchetti are signatory to an agreement between the Mason Contractors Association of America, Inc. and the Laborers International Union of North America which also includes scaffolding work under the Laborers jurisdiction (C.P. Exh. 4, art. III, p. 2): All unloading, erecting, dismantling, moving and adjustment of scaffolds.
The Carpenters agreement with the ACG, to which the general contractors are signatory, but the masonry subcontractors are not signatory, also specifically mentions scaffolding work under the Carpenters claim of jurisdiction (C.P. Exh. 1. art L. pp. 2-3); however, the Carpenters agreement also expressly bestows on the contractor the responsibility for making the specific assignments.
The contractor shall make a specific assignment of the work which is included in his contract. For instance, if contractor A subcontracts certain work to contractor B, then contractor B shall have the responsibility for making the specific assignment for the work included in his contract. [C.P. Exh. 1. art. III. pp. 6-7).
If this section of the agreement is applied to the instant case, one may interpret the section as placing the responsibility of awarding the scaffolding work on the masonry subcontractors. ("Contractor A" would be the general contractors, Blount Brothers and Volpe, while "Contractor B" would be the masonry subcontractors, Anastasi and Luchetti.) Further, as mentioned above the two masonry subcontractors are not signatory to the Carpenters agreement with AGC. Consequently, Anastasi and Luchetti were under no contractual obligation to award the disputed work to carpenters.
Although Carpenters contends that the two general contractors are the employers for determining the work in in dispute here, its contention tion is without merit because the Board has held that the company that ultimately controls and makes the job assignment shall be deemed the employer. See Iron Workers Local 21 (Lueder Construction), 233 NLRB 1139, 1140 (1977); Carpenters Local 895 (George A. Fuller Co.). 186 NLRB 152, 153 (1970). The masonry subcontractors, who assigned the disputed work, are the properly designated employers for purposes of determining an award in this case. Consequently, because Laborers has a collective-bargaining agreement with employers Anastasi and Luchetti which indicates the scaffolding work is under the jurisdiction of Laborers, and because Carpenters has no such agreement with the Employers, we find that this factor favors assignment of the disputed work to the employees represented by Laborers Locals 22 and 223.
2. The Employers' preferences and past practices
The Employers have assigned the work to employees represented by Laborers Locals 22 and 223. Luchetti has assigned laborers scaffolding work at various jobsites for the past 20 years. In addition, for the past 9 years, and on over 100 projects, Anastasi has assigned the job of erecting and dismantling scaffolding to laborers. Neither Employer has ever assigned scaffolding work to employees represented by Carpenters. The assignment is consistent with longstanding practice by both Employers, and, therefore, this factor favors an award to employees represented by Laborers Locals 22 and 223.
3. Area practice
The evidence shows that the consistent practice of masonry contractors in the Massachusetts area has been to assign the work of erecting and dismantling scaffolding to employees represented by Laborers.
Carpenters contends, however, that a decision rendered on 29 April 1920, found in a book dated 1 June 1977, which is a compendium of "Agreements and Decisions Rendered Affecting the Building Industry" (the Green Book), establishes that the work in dispute has been historically and traditionally assigned to employees represented by Carpenters. That decision states: Self-supporting scaffolding over 14 feet in height or any special design scaffolds or those built for special purposes shall be built by the Carpenters.
The scaffolding on both projects was over 14 feet in height. Carpenters contends further that Blount Brothers acknowledged that it follows this Green Book of decisions as a matter of
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MASONRY-JANUARY/FEBRUARY, 1985 39