Asbestos Workers Local 12 (National Surface Cleaning)

National Labor Relations Board - Board Decisions

Apr 22, 1992

307 N.L.R.B. 209 (N.L.R.B. 1992)

209
307 NLRB No. 30
ASBESTOS WORKERS LOCAL 12 (NATIONAL SURFACE CLEANING)
International Association of Heat and Frost
Insulators and Asbestos Workers, Local 12,
AFL–CIO and National Surface Cleaning, Inc.
and Mason Tenders District Council of Greater
New York of the Laborers’ International
Union of North America, AFL–CIO. Cases 2–
CD–816, 2–CD–817, 2–CD–818, 2–CD–819
April 22, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charges in this Section 10(k) proceeding were
filed August 26, 27, and 28 and September 4, 1991,
by National Surface Cleaning, Inc., the Employer, al-
leging that the Respondent, International Association
of Heat and Frost Insulators and Asbestos Workers,
Local 12, AFL–CIO violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees it
represents rather than to Mason Tenders District Coun-
cil of Greater New York of the Laborers’ International
Union of North America, AFL–CIO. The hearing was
held on September 24 and 26, 1991, before Hearing
Officer Terry Morgan.
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, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, a New Jersey corporation with an of-
fice and place of business in Elmwood Park, New Jer-
sey, is engaged in asbestos abatement and removal in
buildings located in the New York metropolitan area.
Annually, in the course and conduct of its business, the
Employer provides services valued in excess of
$50,000 to enterprises with offices and places of busi-
ness located within the State of New York. We find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The par-
ties also stipulated, and we find, that Local 12 and the
Mason Tenders are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer’s work in the New York metropolitan
area consists of asbestos removal in occupied midsize
high rise buildings. All the Employer’s employees who
perform asbestos abatement must be specially trained
and licensed by the State of New York and by New
York City. Over 90 percent of the abatement work per-
formed by the Employer includes demolition. The as-
bestos-containing material frequently is located behind
barriers which must be demolished in order to gain ac-
cess to the asbestos-containing material. The Employ-
er’s own employees perform this demolition work
prior to removing the asbestos-containing material.
After the demolition work is completed, the Employ-
er’s employees with asbestos and abatement related
skills remove all the asbestos from the buildings.
On April 17, 1985, the Laborers’ International
Union and the International Association of Heat and
Frost Insulators and Asbestos Workers entered into an
interunion agreement entitled ‘‘International Agree-
ment for Removal of Asbestos-Containing Materials.’’
This document states:
The removal of all insulation materials, whether
they contain asbestos or not, from mechanical sys-
tems (pipes, boilers, ducts, flues breechings, etc.)
is recognized as being the exclusive work of the
Asbestos Workers.
The International Agreement also created a three-step
procedure for referring disputes or controversies aris-
ing out of its application or interpretation. The proce-
dure does not contain a mechanism for resolving dis-
putes that the International presidents fail to settle.
Employees represented by the Mason Tenders have
been performing asbestos abatement in New York City
since well before the International Agreement. The
Mason Tenders has at all times claimed jurisdiction to
perform all asbestos abatement work in New York, and
it has never recognized the International Agreement in
New York.
Consistent with that position, a letter dated April 30,
1991, addressed to the Mason Tenders from the gen-
eral president of the Laborers’ International Union,
stated that:
[O]n October 1, 1986 . . . the Laborers’ Inter-
national Union formally awarded jurisdiction over
all aspects of asbestos remediation work in the
New York Metropolitan area to the Mason
Tenders District Council . . . . The award cov-
ered the removal of asbestos in all branches of the
construction industry, and under all circumstances.
[T]he District Council has implemented this for-
mal award of jurisdiction in collective bargaining
agreements, embracing all aspects of this jurisdic-
tion and . . . has organized the vast majority of
such work within its territorial jurisdiction. . . .
[T]he Council has steadfastly refused at all times
to enter into any agreement with the Asbestos
Workers Union; or to endorse or accept any such
jurisdictional proposal made by any International
Union.
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[T]he only governing instrument is the collective
bargaining agreement between the Mason Tenders
District Council and its employees covering as-
bestos abatement work.
However, an earlier letter dated July 20, 1989,
signed by the general president of the Laborers, ad-
dressed to its regional offices and subregional offices,
stated that:
[T]his office has learned that there are some affili-
ates which are not fully cooperating with the
terms and conditions of the Asbestos Abatement
Agreement, dated April 17, 1985, between the La-
borers’ and Asbestos Workers. . . . [T]his office
is completely committed to working closely with
the Asbestos Workers in accordance with the
International Agreement. You must direct all af-
filiates within your Region to comply with the
terms and conditions of the jurisdictional agree-
ment.
The Employer signed a collective-bargaining agree-
ment with the Mason Tenders effective June 1, 1986,
to May 1, 1990. This collective-bargaining agreement
was subsequently extended until May 31, 1993. Article
IV of the Mason Tenders’ agreement gives the Mason
Tenders exclusive jurisdiction to perform all activities
related to asbestos removal work.
On April 20, 1990, the Employer and Asbestos
Workers Local 201 entered into a Specialty Agreement
for Removal and Abatement of Asbestos. Article IV,
section 2(a)(i), of this agreement states as follows:
The removal of all insulation materials, whether
they contain asbestos or not, from mechanical sys-
tems (pipes, boilers, ducts, flues, breechings, etc.)
is recognized as the exclusive work of the Asbes-
tos Workers.
Appendix ‘‘C’’ of the Specialty Agreement consists of
the International Agreement described above. In Octo-
ber 1990, the Asbestos Workers International Union al-
legedly transferred jurisdiction of asbestos removal of
mechanical systems from Local 201 to Local 12 in the
New York metropolitan area. On October 23, 1990, the
Employer allegedly terminated the Local 201 agree-
ment effective December 31, 1990.
During the months of July and August 1991, busi-
ness agents for Local 12 spoke on several occasions
with the Employer’s vice president, Kenneth
Grandstaff, concerning the use of Local 12 members
for the work of asbestos removal from the mechanical
systems in the buildings for which the Employer had
service contracts in the New York City area.
Grandstaff testified that the Employer agreed to assign
work to Local 12, only if Local 12 could resolve the
jurisdictional dispute with the Mason Tenders and
present the Employer with a written agreement be-
tween the Unions.
In a telephone conversation on August 23, 1991, a
Local 12 representative told the Employer that if Local
12 members were not put to work at the Employer’s
worksites, Local 12 would picket the Employer’s
worksites. On the following Monday, Local 12 began
to picket the Employer’s Sheraton City Squire work-
site. This picketing caused the entire worksite to shut
down for the day. On the following Tuesday, and con-
tinuing through September 20, 1991, Local 12
handbilled at the entrance to each of the Employer’s
New York City worksites: Sheraton City Squire, Daily
News Building, U.S. Postal Service Building, 1114
Sixth Avenue, and 55 Broad Street.
B. Work in Dispute
The disputed work consists of the work of asbestos
removal and abatement relating to mechanical systems
being performed by the Employer in the New York
metropolitan area.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Local 12 violated Section
8(b)(4)(D) of the Act by picketing for the purpose of
forcing the assignment of asbestos removal and abate-
ment work to employees represented by Local 12. The
Employer also denies that any agreed-upon method to
resolve this dispute voluntarily exists. On the merits,
the Employer contends that the disputed work should
be awarded to employees represented by the Mason
Tenders on the basis of employer preference and past
practice, economy and efficiency of operations, and the
collective-bargaining agreement between the Mason
Tenders and the Employer. The Employer further con-
tends that it never had a collective-bargaining agree-
ment with Local 12 and that Local 12’s claims are
based on an expired collective-bargaining agreement
with another Asbestos Workers local, Local 201.
Local 12 contends that it is entitled to the disputed
work on the basis of Local 201’s collective-bargaining
agreement with the Employer and on the International
Agreement between the two International Unions. Re-
garding the collective-bargaining agreement, Local 12
asserts that the ongoing transfer of jurisdiction from
Local 201 to Local 12 entitles it to enforce the collec-
tive-bargaining agreement. Regarding the International
Agreement, Local 12 maintains that the agreement
gives its members exclusive jurisdiction over the dis-
puted work. Since the International Agreement is still
in force, Local 12 contends that under Board law a
local is not permitted to opt out of such an agreement.
Cf. Iron Workers Local 380 (Skoog Construction), 204
NLRB 353 (1973). Additionally, on the merits, Local
12 contends that the work should be awarded to em-
211ASBESTOS WORKERS LOCAL 12 (NATIONAL SURFACE CLEANING)
ployees it represents based on the factors of employee
skills, economy and efficiency, and the Employer’s
preference and past practice. In the alternative, Local
12 contends that an agreed-upon dispute resolution
mechanism exists, which binds all parties to the instant
dispute.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
Here, Local 12 threatened to picket at the Employ-
er’s worksites following its demands that the disputed
work be assigned to its members. After the Employer
failed to meet Local 12’s demands, Local 12 began
picketing at the Employer’s Sheraton City Squire
worksite. Additional picketing and handbilling oc-
curred at the Employer’s other New York City work-
sites. We find on these facts that there is reasonable
cause to believe that a purpose of Local 12’s picketing
and handbilling was to force the Employer to assign
the asbestos removal and abatement work to individ-
uals who are represented by Local 12.
Further, we find that the record is insufficient for us
to determine whether the alleged transfer of jurisdic-
tion between Locals 201 and 12 actually occurred or
that the International Agreement between the two
International Unions applies to the New York City
area. Thus, we reject Local 12’s argument that the lan-
guage of either the Local 201 collective-bargaining
agreement and/or the International Agreement referred
to above binds all the parties to a method for resolving
the instant dispute.
Based on the foregoing, we find reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred 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 determina-
tion.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that either of the labor organi-
zations involved in this dispute has been certified by
the Board as the collective-bargaining representative of
the Employer’s employees. The Mason Tenders and
the Employer are parties to a collective-bargaining
agreement which gives the Mason Tenders exclusive
jurisdiction over all the Employer’s asbestos removal
work in the New York City area.
As noted above, on April 20, 1990, the Employer
and Local 201 entered into a ‘‘speciality’’ agreement
which recognized Local 201 as the exclusive collec-
tive-bargaining agent for all its employees who per-
form duties related to the removal of insulation mate-
rials from mechanical systems. In October 1990, the
International Association of Heat and Frost Insulators
and Asbestos Workers allegedly began the transfer of
jurisdiction from Local 201 to Local 12. Local 12
maintains that the International’s transfer of jurisdic-
tion allows it to enforce the provisions of the collec-
tive-bargaining agreement between Local 201 and the
Employer.
At the hearing the Employer introduced into evi-
dence a letter dated October 23, 1990, that was sent
by its president to Local 201. The letter stated that on
December 31, 1990, the collective-bargaining agree-
ment between the parties would be terminated. How-
ever, Local 201 witnesses testified that this termination
letter was never received. The Employer also intro-
duced into evidence an April 30, 1991 letter, described
above, that was sent by the president of the Laborers’
International Union to the Mason Tenders. The letter
stated that with regard to jurisdictional disputes relat-
ing to asbestos remediation work in the metropolitan
area of New York City, the International Agreement
had no binding effect on the Mason Tenders. Under
these circumstances, we find the factor of collective-
bargaining agreements to be inconclusive and does not
favor an award of disputed work to either group of
employees.
2. Employer preference and past practice
The Employer has assigned the work in dispute to
its employees represented by the Mason Tenders. As
noted above, at one time the Employer used employees
represented by Local 201 and the Mason Tenders to
perform asbestos abatement. At some point, the Em-
ployer determined that it would use only employees af-
filiated with the Mason Tenders. The Employer has
never used employees represented by Local 12. As for
the future, the Employer prefers that its assignment to
employees represented by the Mason Tenders be con-
tinued. Thus, the factors of employer preference and
past practice favor the continued assignment of this
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At the time of Local 12’s picketing, it did not have any members
who could perform the disputed work. The record shows that if
Local 12 performed the disputed work at that time it would have
needed to use Local 201 members.
work to the Employer’s employees represented by the
Mason Tenders.
3. Relative skills
The State and City of New York require the licens-
ing of workers who remove asbestos. The record
shows that employees represented by Local 12 (for-
merly represented by Local 201), Local 201, and the
Mason Tenders possess the needed licenses to perform
asbestos abatement work.1 As for specific skills, the
record shows that all employees represented by these
Unions possess sufficient skills to perform asbestos re-
moval and abatement. Under these circumstances, we
find that this factor is inconclusive and does not favor
an award of the disputed work to either group of em-
ployees.
4. Economy and efficiency of operations
The Employer contends that the use of employees
represented by Local 12, in light of Local 12’s claim-
ing jurisdiction only over the work of asbestos removal
from mechanical systems, would lead to mixed crews
of Mason Tenders and Local 12. Grandstaff testified
that use of mixed crews would result in disruptions
and slowdowns of the Employer’s ongoing projects.
Grandstaff further testified that the work in dispute
would be performed more efficiently with employees
represented by only one union at the jobsite. Thus,
Grandstaff stated that if asbestos were hidden behind
a wall or floor, the demolition work necessary to gain
access to this material would be done by employees
represented by the Mason Tenders, and not by Local
12’s members. Under these circumstances, we find that
the factor of economy and efficiency of operations fa-
vors an award of the disputed work to employees rep-
resented by the Mason Tenders.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Mason
Tenders are entitled to perform the work in dispute.
We reach this conclusion by relying on the Employer’s
preference, past practice, and economy and efficiency
of operations. In making this determination, we are
awarding the work to employees represented by the
Mason Tenders, 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 fol-
lowing Determination of Dispute.
1. Employees of National Surface Cleaning, Inc.,
represented by Mason Tenders District Council of
Greater New York of the Laborers’ International Union
of North America, AFL–CIO, are entitled to perform
the work of asbestos removal and abatement relating to
mechanical systems being performed by the Employer
in the New York metropolitan area.
2. International Association of Heat and Frost
Insulators and Asbestos Workers, Local 12, AFL–CIO
is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force National Surface Clean-
ing, Inc., to assign the disputed work to employees
represented by it.
3. Within 10 days from this date, International Asso-
ciation of Heat and Frost Insulators and Asbestos
Workers, Local 12, AFL–CIO shall notify the Regional
Director for Region 2 in writing whether it will refrain
from forcing the Employer, by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.