Masonry Magazine December 1989 Page. 53
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, i.e., that there are competing claims to disputed work between rival groups of employees and that there is reasonable cause to believe that at least one party has used proscribed means to enforce its claim.
As set forth above, in response to information that Carpenters Locals 33 and 40 claimed that the scaffolding work was subcontracted in violation of their contract, Laborers Locals 22 and 151 threatened to strike Turner's jobsites. There is no record evidence supporting the claim of Carpenters Locals 33 and 40 that the threats were collusive and not genuine. Consequently, there is reasonable cause to believe that the Laborers used means proscribed by Section 8(b)(4)(ii)(D) to enforce their claim to the work.
Furthermore, we find that there are competing claims to the disputed work. In O'Connell's Sons, above, the Board held that when two different unions have collective-bargaining agreements with an employer arguably covering the work in dispute and one of those unions opts to pursue the work through a contractual grievance, that grievance will be considered a claim to the work for purposes of determining the existence of jurisdiction under Section 10(k). Here, two unions have collective-bargaining agreements with Turner. Relying on their contract, Laborers Locals 22 and 151 claim the scaffolding work for the employees they represent. The grievances of Carpenters Locals 33 and 40 also assert that the Carpenters' contract covers the work Consequently, we conclude that there are competing claims to disputed work between rival groups of employees.
We find reasonable cause, therefore, to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed 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 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).
Because Carpenters Locals 33 and 40 conceded that if the dispute is properly before the Board, the work would be awarded to employees represented by Laborers Locals 22 and 151. Carpenters Locals 33 and 40 did not present any evidence at the hearing regarding the merits of the dispute. The parties, by stipulation, incorporated portions of the record in Laborers Local 223 (Anastasi Bros.), 272 NI.RB 860 (1984), into the record of the present case.
The following factors are relevant in making the determination of the dispute.
1. Certifications and collective-bargaining agreements
No party claims there are certifications applicable to the work in dispute.
See also Iron Workers Local 433 (Crescent Corp.). 277 NLRB 670, 673 (1985); Sheet Metal Workers Local 107 (Lathrop Co.). 276 NLRB 1200, 1202 (1985); Electrical Workers IBEW Local 104 (Standard Sign). 246 NLRB 1144. 1145 (1980).
"The collective-bargaining agreements of these Unions were involved in a factually similar dispute in Anastasi Bros.. supra. In that case, the Board awarded the disputed work to employees represented by Laborers Local 223.
AA WIRE PRODUCTS COMPANY
6100 S. New England Ave., Chicago, IL 60638
Phone 312-586-6700/FAX 312-586-6710
From the pages of the world's most
illustrated masonry reinforcing guide...
reinforcing
for every masonry wall
The totally new AA Wire Masonry Reinforcing Guide is
your best source for finding the right system for every
requirement. It's illustrated in full color. There are
dozens of continuous wire reinforcements,
adjustable systems, ties, anchors, and acces-
sories to choose from. AA Wire is also
your best source for selection, quality,
delivery and value! Architects, en-
gineers, builders, masons-
send for your free valuable
guide today.
MASONRY-NOVEMBER/DECEMBER, 1989 53