Masonry Magazine February 1986 Page. 44
NLRB DECISION
representatives of Local 223 who informed Turner that they understood the scaffolding work might be reassigned. Local 223 stated that if the reassignment were made, Local 223 would strike. Heyde responded by stating that the work was not under Turner's direction and therefore Turner had no authorization to reassign the work.
On 26 November Local 33 dispatched employees to the 140 Federal Street project. Local 13, however, is pursuing a contractual claim against Turner before the American Arbitration Association alleging that Turner violated its agreement with Local 33 by including in its contract with Moliterno Stone Sales, Inc. the erection and dismantling of scaffolding over 14 feet.
B. Work in Dispute
The disputed work involves the erection, maintenance, and dismantling of pipe scaffolding at the 140 Federal Street, Boston, Massachusetts project.
C. Contentions of the Parties
Local 33 contends that there is no reasonable cause to believe that it has violated Section 8(b)(4)(D) and that, therefore, the dispute is not properly before the Board and the notice of hearing should be quashed. Local 33 further contends that there is no clear showing that it threatened, coerced, or restrained Turner with an object of forcing Turner to assign the scaffolding erection work to employees represented by it. In this regard, Local 33 asserts that its refusal to send workers to the 140 Federal Street project was based solely on the alleged failure to complete a pre-job conference. Local 33 "concedes," based on a prior determination of dispute by the Board, that in the event that the Board finds the dispute properly before it, the work will be awarded to employees represented by Local 223.
AGC and Laborers Local 223 contend that Local 33 violated Section 8(b)(4)(D), that the dispute is properly before the Board, and that the work should be assigned to employees represented by Local 223. They further contend that because this is a long-standing dispute between the Carpenters and the Laborers, the Board should issue a broad order covering the geographic areas encompassed in the Boston District Council of Carpenters' agreement with AGC.
D. Applicability of the Statute
In a 10(k) proceeding, it is necessary to determine whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. In the instant case, in view of Local 33's contentions, this requires a finding as to whether there is reasonable cause for believing that Local 33 was claiming the work in question and, if so, whether it was using proscribed means to enforce its claim.
Although Turner Construction Co. did not subcontract the masonry and scaffolding erection work to Moliterno Stone Sales, Inc. until 23 October, it is clear from the record that a dispute over who should perform the scaffolding erection work existed as early as 2 October. On that day, at a prejob conference involving representatives for Turner, Local 33, and Local 223, both Unions claimed the right to do the scaffolding erection work.
As noted above, Local 33 threatened to picket the 140 Federal Street project site and cause trouble on every other Turner Construction site within its jurisdiction. Furthermore, Local 33 refused to send workers to the worksite after being requested to do so on 18 and 22 October and 19 November. In addition, Laborers Local 223 threatened to strike if the disputed work were reassigned to employees represented by Carpenters Local 33.
It is undisputed that there is no agreed-upon method for voluntary resolution of the dispute. We therefore find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for 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 of determination.
These Unions brought a similar dispute before the Board in Laborers Local 223 (Anastasi Bros.), 272 NLRB No. 111 (Oct. 22, 1984). In that case, the Board awarded the disputed work, the erection of pipe scaffolding, to employees represented by Laborers Local 223.
44 MASONRY-JANUARY/FEBRUARY, 1986
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), 363 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).
Because Local 33 conceded that if the dispute is properly before the Board, the work would be awarded by the Board to employees represented by Local 223, Local 33 did not present any evidence at the hearing regarding the merits of the dispute. Consequently, only AGC presented evidence at the hearing. In addition, we have considered evidence presented in Anastasi Bros., supra, which, by stipulation of all parties, has been incorporated into the record of the present case.
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 either Local 33 or Local 223 as the collective-bargaining representative for any of the employees involved herein.
Local 223's agreement with AGC, to which the general contractor (Turner Construction Co.) and the masonry and scaffolding subcontractors (Moliterno Stone Sales, Inc. and Marr Scaffolding Co.) are signatory, specifically refers to the scaffolding work under the Laborers' "Jurisdictional Claims" (C.P. Exh. 2. app. A.. pp. 24):
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.
Local 33's agreement with the AGC, to which Turner, but not Moliterno Stone Sales or Marr Scaffolding, is signatory, also refers to scaffolding work under the Carpenters' claim of jurisdiction (C.P. Exh. 1, art. 1, pp. 2-3). The Carpenters' agreement, however, 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. If contractor B in turn shall subcontract certain work to contractor C, then contractor C 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 reasonably may interpret the section as placing the responsibility of awarding the scaffolding work on the scaffolding subcontractor ("Contractor A" would be the general contractor, Turner Construction Co., while "Contractor B would be the masonry subcontractor, Moliterno, and "Contractor C" would be the scaffolding subcontractor, Marr Scaffolding Co.). Further, as noted above, the masonry and scaffolding subcontractors are not signatory to Local 33's agreement with AGC. Consequently, Moliterno and Marr were under no contractual obligation to award the disputed work to employees represented by Local 33.
Because Local 223 has a collective-bargaining agreement with Marr Scaffolding Co., which provides that the scaffolding work is under the jurisdiction of Laborers, and because Local 33 has no such agreement with Marr, we find that this factor favors an award of the disputed work to the employees represented by Laborers Local 223.
2. The Employers' preferences and past practices
Marr Scaffolding has assigned scaffolding work at various job-sites to employees represented by Laborers Local 223. The company employs a special crew of laborers trained to erect the type of scaffolding used at the 140 Federal Street project. The assignment is consistent with longstanding practice of Marr Scaffolding and, therefore, this factor favors an award to employees represented by Laborers Local 223.