Masonry Magazine February 1970 Page. 30
The Employer assigned the work of erecting the scaffolding to laborers, who are members of Local 563.
Fred LeMieux, the Employer's laborer foreman, testified that on March 27, 1969, he was told by James Hill, Respondent Local 7's steward on the jobsite, that if laborers continued to work on the scaffolding, he would call all the carpenters out and picket the job. Donald Frantz testified that on March 28, 1969, Stan Fudro, Local 7's business agent, informed him that any work involving scaffolding in excess of 14 feet in height belonged to members of Local 7 and that if Frantz continued to assign such work to members of Local 563, he would order all the carpenters off the job. Although the Employer does not employ carpenters, other subcontractors and the general contractor, First Florida Corporation of Miami, had carpenters in their employ. Subsequently, there was such a work stoppage and the carpenters remained away from the jobsite for 2 days, April 3 and 4, 1969, but thereafter returned to work and were working at the time of the hearing.
B. The Work in Dispute
The work in dispute is the erection and dismantling of tubular steel scaffolding where the height of the scaffolding exceeds 14 feet at the aforementioned building.
C. The Contentions of the Parties
Respondent did not file a brief with the Board, but on the record it contended that it has neither threatened nor coerced the Employer within the meaning of Section 8(b) (4) (D) of the Act. Respondent further contended on the record and in its reply to the Employer's response to Notice to Show Cause, that, at the time of the dispute and at the time the charge was filed, all parties were bound by a voluntary method of adjustment to submit the jurisdictional dispute to the Joint Board. Accordingly, it asserts that the Board is precluded from making a work determination under Section 10(k) of the Act. Alternatively, Respondent on the record argued that the disputed work should be awarded to employees represented by it in view of a 1920 Joint Board decision awarding similar disputed work to Carpenters and because such assignment is supported by the Carpenters' superior training, skill, and experience, and by area practice and safety considerations.
The Employer contends that Respondent did engage in unlawful threats and coercion, and that it is not bound by the Joint Board award because it did not participate in the Joint Board proceeding. It asserts that at no time were all the parties in agreement on a method of settlement, for the business representative of Local 563 testified that his Union was in noncompliance with determinations of the Joint Board and the Employer has no agreement with Respondent Local 7. With respect to its commitment to abide by the terms and conditions of the Builders Division Agreement between Local 563 and the Associated General Contractors, herein called the AGC, the Employer states that a new agreement was entered into on May 5, 1969, which was effective at the time of the hearing herein on May 21 and 22, 1969, and at the time of the Joint Board hearing on June 5, 1969, and this agreement deletes all reference to the submission of jurisdictional disputes to the Joint Board. Finally, the Employer contends that the disputed work should properly be awarded to members of Local 563 in view of: (a) the coverage thereof accorded by the current agreement between the Masonry Contractors Association of America, in which the Employer holds membership, and the Laborers' International Association of America, with which Local 563 is affiliated; (b) considerations of efficiency, economy and safety; and (c) area and industry practice.
Local 563 did not file a brief with the Board, but on the record it asserted that its members are entitled to the work as they have been performing this work in this area for many years and are fully qualified. In addition, Local 563 contends that the 1920 award relied on by Local 7 involved the erection of wooden scaffolding and has no applicability to tubular steel scaffolding.
D. Applicability of the Statute
Before the Board may proceed with a determination of the 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 violated. As set forth previously, Frantz and LeMieux testified that Respondent threatened to induce carpenters employed by First Florida Corporation of Miami, the general contractor, to walk off the Pillsbury jobsite unless the Employer assigned the erection and dismantling of all scaffolding on the jobsite to carpenters rather than to its employees represented by Local 563. Their testimony was contradicted by that of Fudro and Hill. Nevertheless, the Board is not charged with finding that a violation did in fact occur, but only that reasonable cause exists to find such a violation. Without ruling on the credibility of the testimony in issue, we conclude that there is reasonable cause for believing that a violation of Section 8(b) (4) (D) has occurred.
In the circumstances of this case, we are not satisfied that at times here material all parties have agreed to be bound by determinations of work jurisdiction made by the Joint Board. Under the Masonry Contractors Association contract, the Employer is bound to conform to the area local agreement. The Employer on June 6, 1966, agreed to abide by the terms and conditions of the contract which Local 563 had with the AGC. Although that contract provided for the submission of jurisdictional disputes to the Joint Board, it expired April 30, 1969, before the date of the hearing in this proceeding and before the dispute was submitted by Respondent to the Joint Board. The new contract between the AGC and Local 563, which took effect on May 5, 1969, does not provide for the submission of jurisdictional disputes to the Joint Board. Moreover, the Employer was not a participant in the Joint Board proceeding. Thus, at all times when an agreed-upon method for settlement was urged, no binding commitment to abide by determinations of the Joint Board was in effect. Under these circumstances, we find that it will effectuate the policies underlying Sections 10(k) and 8(b) (4) (D) for us to determine the merits of the dispute. Accordingly, we find that the instant dispute is appropriate for resolution under Section 10(k) of the Act.
On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section
Locals 138, 1384, 1388, 138C, and 138D, International Union of Operating Engineers, AFL-CIO (Caffasso Lathing and Plastering, Inc.), 119 SLRB 156. 158. 159. In light of the questions that have arisen concerning the continued functioning of the National Joint Board, Member Zagoria agrees with the conclusion that the parties have not submitted satisfactory evidence of an method for the voluntary adjustment of the dispute
1212, International Brotherhood of Electrical Workers (Columbia Broadcasting System), 364 U.S. 573. masonry • February, 1970