Masonry Magazine June 1988 Page. 30
disputed work between rival groups of employees..
As noted above, in response to information that Carpenters Local 40 claimed the work was subcontracted in violation of its contract, Laborers' District Council threatened on two occasions to strike O'Connell's. There is no record evidence supporting Carpenters Local 40's claim that the threats were collusive and not genuine. Accordingly, if there are competing claims to disputed work between rival employee groups, there is reasonable cause to believe that a violation of Section 8(b)(4)[D] has occurred.
Carpenters Local 40 contends there are no competing claims because its grievance does not constitute a claim for the work. We reject this contention. In Teamsters Local 578 (UFCP-WESCO, Inc.), 280 NLRB No. 95 (June 24, 1986), affd. 126 LRRM 2391 (9th Cir. 1987), on which Carpenters Local 40 relies, the Board in fact stated that there were "competing claims to the work," but quashed the notice of hearing because the real nature of the dispute was work preservation rather than jurisdictional. In that case the employer had a contract with only one union and sought to transfer work out of the unit and subcontract it to another employer. The Board concluded that the dispute was essentially between the union and the employer rather than between rival groups of employees. Here, we have a traditional 10(k) situation in which two unions have collective-bargaining agreements with O'Connell's. Relying on its contract, Laborers' District Council claims the scaffolding work for the employees it represents. Carpenters Local 40's grievance, as it admits, evidences that Carpenters also asserts its contract covers the scaffolding work. Thus, we have a traditional jurisdictional dispute in which two unions have collective-bargaining agreements and each union claims its contract covers the same work. Consequently, we conclude there are active competing claims to disputed work between rival groups of employees.
Based on our findings above, we find reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon 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. Mochinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 140 (1962).
Because Carpenters Local 40 conceded that if the dispute is properly before the Board, the work would be awarded to employees represented by Laborers' District Council, Carpenters Local 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 Anastasi Bros., supra, into the record of the present case.
The following factors are relevant in making the determination of this dispute.
1. Certifications and collective-bargaining agreements
No party claims there are certifications applicable to the work in dispute.
Laborers' District Council's agreement with the AGC, to which the general contractor (O'Connell's) and the subcontractor (Anastasi) are signatory, specifically refers to the work in dispute as laborers' work.
Carpenters Local 40's agreement with the AGC, to which O'Connell's but not Anastasi is signatory, refers to the disputed work as carpenter's work. Carpenters Local 40's contract, however, also expressly provides that the contractor or subcontractor with the final contract to do the work shall be the entity to make the work assignment. In this case, Anastasi has the final contract.
Carpenters Local 40's grievance also belies its asserted disclaimer of the disputed work. Sheet Metal Workers Local 107 (Lathrop Co.), 276 NLRB 1200, 1202 (1985).
The collective-bargaining agreements of these unions were involved in a factually similar dispute in Laborers Local 223 (Anostosi Bros.) 272 NLRB 860 (1984). In that case, the Board awarded the disputed work to employees represented by Laborers Local 223.
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to perform the scaffolding work and is responsible for the work assignment. Anastasi is not signatory to Carpenters Local 40's agreement with the AGC and, therefore, is under no obligation to award the disputed work to employees represented by Carpenters Local 40. See Anastasi Bros., supra.
Because Laborers' District Council has a collective-bargaining agreement with Anastasi covering the disputed work, and because Carpenters Local 40 does not have such a contract with Anastasi, we find that this factor favors an award of the disputed work to employees represented by Laborers' District Council.
2. The Employer's preference and past practice
Anastasi has assigned scaffolding work on this and numerous other construction projects to employees represented by the Laborers. Anastasi has never assigned the scaffolding work to employees represented by a carpenters union. Accordingly, this factor favors an award to employees represented by Laborers' District Council.
3. Area practice
Testimony presented at the hearing in Anastasi Bros., supra, and incorporated into the record in this case, shows that it is standard practice for laborers to erect and dismantle pipe scaffolding in the Boston area. Accordingly, this factor favors an award of the disputed work to employees represented by Laborers' District Council.
4. Economy and efficiency of operation
The laborers who were assigned the scaffolding work perform other tasks for Anastasi. The laborers unload and deliver to the appropriate spot various masonry materials and supplies: mix mortar and bring it, together with brick supplies, to the brick masons; and perform cleanup details. If the disputed work were assigned to carpenters, they would have no duties beyond the scaffolding. Thus, Anastasi would need to hire two crews to do the work now done with one laborer crew. Accordingly, economy and efficiency of operation favors awarding the disputed work to employees represented by Laborers' District Council.
5. Relative skills and safety
The record reveals that the disputed work is performed at levels high above the ground. If the work is not properly performed, the employees performing the work and other employees working beneath the scaffolding could be endangered. The laborers hired by Anastasi have years of training and experience performing the disputed work. Carpenters Local 40 presented no evidence concerning its members' skills and experience to perform the disputed work safely. Accordingly, this factor favors an award of the disputed work to employees represented by Laborers' District Council.
Conclusions
After considering all the relevant factors, we conclude that employees represented by Laborers' District Council are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference and past practice, area practice, economy and efficiency of operation, and relative skills and safety. In making this determination, we are awarding the work to employees represented by Laborers' District Council, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the following Determination of Dispute.
Employees of Anastasi Brothers Corporation represented by Massachusetts Laborers' District Council a/w Laborers' International Union of North America are entitled to perform the erection, installation, and dismantling of pipe scaffolding at the Thomas Graves Landing Project in Cambridge, Massachusetts.
James M. Stephens, Chairman
Marshall B. Babson, Member
Mary Miller Cracraft, Member
NATIONAL LABOR RELATIONS BOARD
Dated, Washington, D.C. March 14, 1988