Masonry Magazine June 1987 Page. 34
NLRB DECISION
commenced in June and it was erected and dismantled by Anastasi employees. As of the date of the hearing, the work was nearly completed. Notwithstanding Chipman's earlier remarks, the carpenters did not refuse to work off the scaffolding. In the meantime, however, around mid-July, local 218 filed a grievance against Perini concerning its subcontracting of the scaffolding work. In October, Gross learned that an arbitrator had ruled that Blount Brothers Corporation had breached its contract with another local of the Carpenters by subcontracting scaffolding work to a subcontractor who did not have an agreement with the Carpenters. Upon learning this, Gross became concerned because Local 218's pending grievance against Perini involved a similar dispute. Gross then contacted Lou Mandarini, the business agent for Laborers Local 22, to discuss the impact of the Blount arbitration award on the Charlestown project. Gross asked Mandarini to attend a meeting with Gross and a representative of the Carpenters to see if an accommodation, such as a composite crew or an adjusted work assignment, could be worked out. Mandarini said that he would not attend a meeting and that it was his Union's work and, if Perini wished to change the assignment, he would not supply any laborers at all to the project. Gross testified that if the laborers were pulled from the job it would, in essence, be shut down. Thereafter, Perini did not ask Anastasi to use carpenters on the scaffolding work and no laborers were withdrawn from the jobsite. On 30 October and 15 November, respectively, Perini and AGC filed a charge and amended charge alleging that Laborers Local 22 violated Section 8(b)(4)(D). They filed a similar charge 30 October alleging that Carpenters Local 218 had also violated Section 8(b)(4)(D). This latter charge, however, was subsequently withdrawn.
B. Work in Dispute
The disputed work involves the erecting and dismantling of pipe scaffolding at the Charlestown Condominium Project in Charlestown, Massachusetts.
C. Contentions of the Parties
Perini and AGC contend that the disputed work was properly assigned to employees represented by the Laborers based on the Laborers' collective-bargaining agreements with both Perini and Anastasi, company practice, area practice, economy and efficiency of operation, skills, and safety. They further contend that a broad award is warranted covering the geographic area encompassed by the Boston District Council of Carpenters' agreement with AGC.
Carpenters Local 218 contends that no jurisdictional dispute exists. It argues that it is not claiming the disputed work but is merely pursing a grievance seeking a declaration by an arbitrator that the subcontracting clause of its agreement with Perini has been violated. Local 218 contends that this conduct is not tantamount to a demand for the work because Local 218 has not sought any backpay remedy or money damages for breach of the collective-bargaining agreement.
At the hearing, Laborers Local 22 took the position that there is a viable jurisdictional dispute over the assignment of the work and that Local 218's attempted disclaimer at the hearing was ineffective.
D. Applicability of the Statute
Before the Board may proceed with a determination of 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
As noted, in May, Carpenters Local 218 threatened to refuse to permit carpenters to work on the scaffolding at the Charlestown Condominium Project for the purpose of forcing Perini to assign the disputed work to employees represented by Carpenters. Carpenters, in July, later threatened to do what they had to do to protect their claim to the work. Carpenters Local 218 now indicates that it has disclaimed the work and contends that therefore no jurisdictional dispute exists. We find that Carpenters Local 218's attempted disclaimer of the work is not an effective renunciation which resolves the jurisdictional dispute. We note that local 218's attempted disclaimer was first asserted at the hearing when the disputed work was almost completed. See, e.g., Laborers Local 910 (Brockway Glass Co.), 226 NLRB 142, 143 (1976).
violated and that the parties have not agreed upon a method for the voluntary adjustment of the dispute.
In October, Laborers Local 22 threatened not to supply any laborers to the project if the disputed work were reassigned to employees represented by Local 218. Further, the parties have stipulated that there exists no agreed-on method for the resolution of this 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-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.
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. Certification and collective-bargaining agreements
There is no evidence that the Board has certified either Carpenters Local 218 or Laborers Local 22 as the collective-bargaining representative for any of the employees involved herein. As noted, the Laborers, through the AGC, has an agreement with Anastasi which describes, at Appendix A, the "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" as being within the jurisdiction of the Laborers. The Carpenters does not have an agreement with Anastasi. Although Carpenters does have an agreement with the general contractor, Perini, that agreement is not germane to the instant work dispute. That is so because it is Anastasi, not Perini, that is the employer for the purposes of deciding the work dispute. In this regard, it is well settled that it is the company that ultimately controls and makes the job assignment that is deemed to be the employer. Laborers Local 223 (Anastasi Bros. Corp.), supra, 272 NLRB at 862-863. In the present case, it is Anastasi who assigned the disputed work, and it is Anastasi that is the properly designated employer for the purpose of determining the award of the disputed work. Accordingly, because the Laborers have an agreement with Anastasi which indicates that the scaffolding work is under the jurisdiction of the Laborers, while the Carpenters have no agreement with Anastasi, we find that this factor favors an award of the disputed work to the employees represented by Laborers Local 22.
2. Company preference and past practice
Anastasi has assigned the disputed work to employees represented by Laborers Local 22 and is satisfied with their performance. In addition, Anastasi has had a past practice of assigning scaffolding work on other projects to employees represented by Laborers. Anastasi does not employ carpenters and always employs laborers to perform scaffolding work. Accordingly, we find that these factors favor an award of the disputed work to the employees represented by Laborers Local 22.
3. Relative skills
Anastasi's field superintendent, Michael Sneel, testified that the laborers skillfully and safely erect the scaffolding and that he is satisfied with their expertise. Sneel also testified that, in his experience, carpenters are insufficiently skilled and experienced to assist the hoisting crews in unloading and dismantling the scaffolding. Accordingly, on this record, we find that this factor favors an award of the disputed work to the employees represented by Laborers Local 22.
4. Economy and efficiency of operations
The laborers perform a variety of duties at the jobsite in addition to their duties in erecting and dismantling the scaffolding. If Anastasi were directed to assign the disputed work to carpen-