Masonry Magazine June 1988 Page. 29
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
Award Laborers Erection, Installation and Dismantling of Pipe Scaffolding
Case 1-CD-802
MASSACHUSETTS LABORERS' DISTRICT
COUNCIL a/w LABORERS' INTERNATIONAL
UNION OF NORTH AMERICA
and
DANIEL O'CONNELL'S SONS, INC.
and
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
LOCAL NO. 40
DECISION AND DETERMINATION OF DISPUTE
The charge in this Section 10(k) proceeding was filed May 4, 1987, by Daniel O'Connell's Sons, Inc. (O'Connell's), alleging that the Respondent, Massachusetts Laborers' District Council a/w Laborers' International Union of North America (Laborers' District Council), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing O'Connell's or its subcontractor to assign certain work to employees it represents rather than to employees represented by United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 40 (Carpenters Local 40). The hearing was held August 11 before Hearing Officer Joseph F. Griffin.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following findings.
I. Jurisdiction
O'Connell's, a Massachusetts corporation, is engaged in the construction industry as a general contractor in Massachusetts, where it annually purchases as its various sites throughout Massachusetts goods and supplies valued in excess of $50,000 directly from points located outside the Commonwealth of Massachusetts.
The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Laborers' District Council and Carpenters Local 40 are labor organizations within the meaning of Section 2(5) of the Act.
II. The Dispute
# A. Background and Facts of Dispute
O'Connell's is the general contractor for the Thomas Graves Landing Project in Cambridge, Massachusetts. The project involves the erection of an eight-story condominium building.
O'Connell's is affiliated with the Associated General Contractors of Massachusetts (AGC). O'Connell's authorized the AGC to enter into contracts with the Laborers' District Council and the Boston District Council of Carpenters, which includes Carpenters Local 40. O'Connell's engaged a masonry contractor. Anastasi Brothers Corporation (Anastasi), which has a contract with Laborers' District Council, but not with Carpenters Local 40. Anastasi was responsible for the pipe scaffolding aspect of the project and had laborers perform and scaffolding and the masonry work.
On March 9 Carpenters Local 40 sent the AGC a letter stating that O'Connell's had violated its contract by subcontracting the scaffolding work. The letter requested a jobsite conference. When O'Connell's vice president, Patrick Kelliher, received a copy of the letter, he telephoned Paul McNally, business manager of the Statewide District Council of the Laborers' District Council, to discuss Carpenters Local 40's request. McNally stated the laborers would strike the jobsite if the work was reassigned to the carpenters. After being informed that Carpenters Local 40 was pursuing financial damages under the arbitration clause of their contract. Kelliher again called McNally in April to see if a joint crew might be arranged. McNally stated that a change in work assignment would result in a laborers' strike at the jobsite and probably all O'Connell's jobs in Boston.
At the time of the hearing in this case, Carpenters Local 40's contractual grievance was being arbitrated.
# B. Work in Dispute
The disputed work involves the erection, installation, and dismantling of pipe scaffolding at the Thomas Graves Landing Project in Cambridge, Massachusetts.
# C. Contentions of the Parties
O'Connell's, Anastasi, and Laborers' District Council contend that the disputed work should be awarded to employees represented by Laborers' District Council on the basis of collective-bargaining agreements with the general contractor and subcontractor, the subcontractor's preference and past practice, area practice, economy and efficiency of operation, and relative skills and safety.
Carpenters Local 40 argues there is no reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated because Laborers' District Council's threats were not genuine. Carpenters Local 40 further contends that there are no competing claims for the work because: (1) its contractual grievance is not a claim and (2) it issued a disclaimer of the work. Carpenters Local 40 also claims that O'Connell's cannot invoke Section 10(k) of the Act because, having breached its contract with Carpenters Local 40, it is not an innocent employer caught between two rival unions. Carpenters Local 40 stipulated, based on prior determinations of dispute, that in the event the Board finds the dispute cognizable, the work will be awarded to employees represented by Laborers District Council.
# D. Applicability of the Statute
In a 10(k) proceeding, the Board must determine whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. In the instant case, this requires a finding that there is reasonable cause to believe that a party has used proscribed means to enforce its claim and that there are competing claims to
MASONRY-MAY/JUNE, 1988 29