Masonry Magazine December 1989 Page. 52
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NLRB DECISION
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tractual grievance and seek monetary damages against Turner. In response to the Carpenters' claims, Turner contacted the Laborers to discuss the Carpenters' position. In each case the Laborers responded that they would strike the jobsite if the work was reassigned to the Carpenters.
B. Work in Dispute
The disputed work involves the erection, installation, and dismantling of pipe scaffolding at the Heritage on the Common and Tent City jobsites in Boston, Massachusetts, and the same work at the Cambridge Center One and Cambridge Center Three jobsites in Cambridge, Massachusetts.
C. Contentions of the Parties
Turner contends that the disputed work should be awarded to employees represented by Laborers Locals 22 and 151 based on the Board's award of similar work in Massachusetts Laborers' District Council (O-Connell's Sons), 288 NLRB No. 12 (Mar. 14. 1988). Carpenters Locals 33 and 40 argue there is no reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated because the threats made by Laborers Locals 22 and 151 were not genuine. Carpenters Locals 33 and 40 further contend that their contractual grievance is not a claim for the work and therefore
According to the testimony of Donald Denman, project executive for Turner, at the Tent City project Turner subcontracted the pipe scaffolding work to Anastasi, who assigned the pipe scaffolding work in question to employees represented by Laborers Local 22. Subsequently, Denman was contacted by Ed Thompson, business representative for Carpenters Local 33, who informed Denman that the Carpenters thought Turner was in violation of the contract. At a meeting to discuss the situation, Thompson stated that the Carpenters were going to get money damages, a comment Denman understood to mean that the Carpenters were going to pursue a contractual grievance. As a result of the meeting, Denman called Louis Mandarini, business agent for Laborers Local 22, and told him that the Carpenters were claiming the work in question. Mandarini replied that if Turner reassigned the work the Laborers would strike the job.
At the Cambridge Center One jobsite, Turner subcontracted the work in question to Anastasi, who in turn assigned the work to employees represented by Laborers Local 151. Bob Bryant, business agent for Carpenters Local 40, informed Turner that the Carpenters felt Turner was in violation of the contract Subsequently, the Carpenters filed a grievance against Turner seeking monetary damages. After Denman learned of the Carpenters' position, he talked with Charlie Bonfiglio, business agent for Laborers Local 151, who informed him that if the work was reassigned he would pull the Laborers off the job.
On the Cambridge Center Three jobsite, Turner subcontracted the work in question to D. J. Construction, who assigned the work to employees represented by Laborers Local 151. The Carpenters, through Andy Silins, an official of the Boston District Council of Carpenters, informed Turner that they believed Turner was in violation of the contract. Again the Carpenters filed a contractual grievance seeking monetary damages against Turner. Denman discussed the situation with Bonfiglio (the same conversation in which Cambridge Center one was discussed), who said he would pull all the Laborers off the job.
At the heritage on the Common jobsite, Turner subcontracted the work in question to Anastasi, who assigned the work to employees represented by Laborers Local 22. Denman received a phone call from Bob Marshall, a business representative for Carpenters Local 33, who stated that Turner was in violation of the contract. Again the Carpenters filed a grievance seeking monetary damages against Turner. After learning of the Carpenters claim, Denman contacted Mandarini, who told him that if the work was reassigned he would pull the Laborers off the job.
The grievance concerning all four jobsites were consolidated for arbitration purposes and were pending at the time of the instant hearing. At the time of the hearing, the work in question was essentially completed at all four sites.
"The Carpenters further contend that the charge involving the Tent City jobsite is barred by Sec. 10(b) of the Act. Assuming arguendo that an Intervenor may assert a 10(b) defense in a 10(k) proceeding, we find no merit in the Carpenters' position as we find that the 10(b) defense was not timely raised. The Board has held that a 10(b) defense initially raised in a post hearing brief is untimely raised and prejudices the General Counsel. Taft Broadcasting Co.. 264 NLRB 185, 190 (1982). Similarly here, the Carpenters did not raise the issue until they filed their brief to the Board. As the matter was never raised at the hearing, we find the claim not properly before us.
Turner filed a motion to strike the 10(b) defense and requested leave to submit a reply brief. Turner's motion to strike the 10(b) defense is granted as we find that the 10(b) defense was not timely raised. Turner's request for leave to file a reply brief is denied.