Laborers' District Council of Washington, D.C.

National Labor Relations Board - Board Decisions

Mar 5, 1979

240 N.L.R.B. 1161 (N.L.R.B. 1979)

LABORERS' DISTRICT COUNCIL OF WASHINGTON, D.C. 1161
Laborers' District Council of Washington, D.C. and
Vicinity, affiliated with Laborers' International
Union of North America, AFL-CIO and Western
Caissons, Inc.
International Union of Operating Engineers, AFL-
CIO and Western Caissons, Inc. and Carpenters'
District Council of Washington, D.C. and Vicinity
and its affiliated Local Union No. 2311, affiliated
with United Brotherhood of Carpenters and Joiners
of America, AFL-CIO.' Cases 5-CD-233 and 5-
CD-234
March 5, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Case 5-CD-233 is a proceeding under Section
10(k) of the National Labor Relations Act. as
amended, following a charge filed on June 16, 1977.
and amended on June 29, 1977, by Western Cais-
sons, Inc. (Western Caissons or Employer), alleging
that Laborers' District Council of Washington, D.C.
and Vicinity, affiliated with Laborers' International
Union of North America, AFL-CIO (Laborers). vio-
lated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activities with an object of forcing
Western Caissons to assign certain work to employ-
ees represented by Laborers rather than to employees
represented by Carpenters' District Council of Wash-
ington, D.C. and Vicinity and its affiliated Local
Union No. 2311, affiliated with United Brotherhood
of Carpenters and Joiners of America, AFL-CIO
(Carpenters).
Case 5-CD-234 is a proceeding under Section
10(k) of the National Labor Relations Act, as
amended, following a charge filed on June 16, 1977,
and amended on June 29. 1977, by Western Caissons
alleging that International Union of Operating Engi-
neers, AFL-CIO (Operating Engineers or IUOE),
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
Western Caissons to assign certain work to employ-
ees represented by Operating Engineers rather than
to employees represented by Carpenters.
Pursuant to an order consolidating cases and to
notice, a hearing was held before Hearing Officer
Nicholas E. Karatinos on September 7, 1977, and
before Hearing Officer Harvey A. Holtzman on Sep-
tember 8 and 9, and November 28, 1977, at Washing-
Name appears as corrected at the hearing
240 NLRB No. 154
ton. D.C. All parties appeared at the hearing and
were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. Thereafter, briefs were
filed by all parties.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officers made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the briefs and
entire record in this case and hereby makes the fol-
lowing findings:
I. BUSINESS OF THE EMPLOYER
Western Caissons, a Canadian corporation which
operates throughout the United States, Canada, and
the Middle East, is a foundation construction com-
pany engaged in the construction of all types of pil-
ings, caissons, and shoring installations. The parties
stipulated, and we find, that the Employer is engaged
in commerce or an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act
and it will effectuate the policies of the Act to assert
jurisdiction.
II THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Laborers,
Operating Engineers, and Carpenters are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
II,1 IHE DISPUTE
A. The Work in Dispute
The work in dispute which the Employer has as-
signed to composite crews of laborers and operating
engineers involves a number of tasks in the construc-
tion of drilled shaft foundations. The work in dispute
between Laborers and Carpenters consists of load-
ing, unloading, stacking, setting, and removing tem-
porary and permanent steel castings used in the con-
struction of drilled or augured holes for foundation
piers. Included in the setting and removing are the
tasks of hooking, unhooking, signaling, and aligning.
The work in dispute between Operating Engineers
and Carpenters consists of the welding and burning
of temporary and permanent steel casings used in the
construction of drilled or augured holes for founda-
tion piers.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Background and Facts of the Dispute
The Employer has operated in the Washington, D.
C., area since 1969: however, its initial project in-
volving drilled shaft foundation work in the Wash-
ington region did not occur until 1976-at the Na-
tional Naval Medical Center, Bethesda, Maryland.
Upon completion of that project, the Employer con-
tracted to construct drilled shaft foundations at two
other locations: Crystal Square No. 3, Alexandria,
Virginia, and the National Institutes of Health,
Bethesda, Maryland.
Western Caissons has agreements with all three la-
bor organizations. In August 1975 it signed an agree-
ment with Operating Engineers Local No. 77 of
Washington, D.C. (Operating Engineers Local 77).
This agreement contains a provision which provides
that any jurisdictional dispute shall be submitted to
the Impartial Jurisdictional Disputes Board (IJDB)
for settlement in accordance with the plan adopted
by the Building and Construction Trades Depart-
ment, AFL-CIO.
Laborers and Western Caissons entered into an
agreement which provides for the resolution of juris-
dictional disputes through arbitration. Similarly, the
Employer's agreement with Carpenters, signed on
July 2, 1976, provides for resolution of jurisdictional
disputes through an arbitration procedure.
In addition, on August 4, 1976, Western Caissons
entered into a National Agreement with both the l.a-
borers' International Union of North America,
AFL-CIO (Laborers' International Union), and the
IUOE which includes a provision assigning the dis-
puted work exclusively to laborers and operating en-
gineers and establishes a procedure for resolving ju-
risdictional disputes.2 That agreement further
provides that it supersedes any previous agreements
entered into between the Employer and a local union
or district council of the unions signatory to the Na-
tional Agreement insofar as these previous agree-
ments established any other method for resolving ju-
risdictional disputes.
The current dispute arose out of the Employer's
work assignments at National Institutes of Health
and Crystal Square No. 3. The same issue had been
raised in July 1976 at the National Naval Medical
'Sec. 13.4 of the National Agreement provides:
13.4 Any work jurisdiction dispute shall he settled in the following
manner:
Step I The first attempt to settle ainy such dispute shall be made at
the jobsite between the Representatives of the Local nion or )lstriclt
Council involved and the employer's representatives.
Step 2 If said dispute is not settled at the jobsite within three (3)
days. t shall he referred to the General Presidents of the Union,s or
their designated representatives for settlement. If the dispute is not
promptly settled on this level, the work shall continue as (origiiall
assigned b, the employer.
Center project; there the Employer and Carpenters
went to arbitration over the Employer's assignment
of the disputed work to a composite crew of laborers
and operating engineers. That arbitration resulted in
a finding on November 13, 1976, that the Employer's
work assignment violated its agreement with Carpen-
ters. Laborers did not participate in the arbitration:
however, an official of Operating Engineers did testi-
fy at the proceeding.
In a letter dated April 11, 1977, Laborers threat-
ened to strike if the Employer changed its assignment
of the disputed work: the threat was repeated by a
telephone call on June I. 1977. By letter dated June
10, 1977, Operating Engineers made a similar threat.
On June 16, 1977, Western Caissons filed charges
(later amended on June 29, 1977) alleging violations
of Section 8(b)(4)(D) by Laborers and Operating En-
gineers. On June 17, 1977, the Employer assigned the
disputed work at both projects to a composite crew
of laborers and operating engineers.
C. Contentions of(' the Parties
Carpetners contends that there exists an agreed-
upon method for the voluntary adjustment of the dis-
pute based upon the Employer's contract with Oper-
ating Engineers Local 77 and the affiliation of each
of the labor organizations with the Building and
Construction Trades Department, AFL CIO. Alter-
natively, Carpenters contends that the Board should
assign the disputed work to employees represented
by Carpenters on the basis of the arbitration result
and area practice.
The Employer. Laborers and Operating Engineers
contend that there is no agreed-upon method for vol-
untary adjustment of the dispute and that the disput-
ed work should be awarded to employees represented
by Laborers and Operating Engineers on the basis of
economy., efficiency of operation, safety, employer
practice and preference, and industry practice.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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,
and (2) the parties do not have an agreed-upon
method for voluntary settlement of the dispute.
We are satisfied that there is reasonable cause to
believe that an 8(b)(4)(D) violation has occurred in
this case. Laborers threatened to strike on two occa-
sions in the event the Employer altered its customary
practice in assigning the disputed work and Operat-
ing Engineers delivered a similar warning on June 10,
LABORERS' DISTRICT COUNCIL OF WASHINGTON, D.C. 1163
1977. These threats were delivered in anticipation of
an assignment of the disputed work at two locations
and in the context of a heated and ongoing dispute
over the Employer's practice of assigning the disput-
ed work. Furthermore, the favorable arbitration
award obtained by Carpenters provided an obvious
and reasonable basis for Laborers and Operating En-
gineers to fear that the Employer might be influenced
to change its work assignment practices. There is no
evidence in the record that indicates that either of the
Charged Unions received any assurances from the
Employer that the arbitration award of the disputed
work to employees represented by Carpenters would
not affect Western Caissons' future work assignment
policy. Accordingly. since the threats were delivered
with the object of forcing or requiring the Employer
to continue its practice of assigning the disputed
work to a composite crew of employees represented
by Laborers or Operating Engineers, we find there is
reasonable cause to believe that Section 8(b)(4)(D) of
the Act has been violated and, assuming that an
agreed-upon method for settling the instant dispute
does not exist, this case is properly before the Board
for a determination under Section 10(k) of the Act.
From the record as a whole, it is clear that there is
no agreed-upon method for the resolution of this dis-
pute. We do not agree with Carpenters' contention
that the IJDB constitutes an agreed-upon settlement
method because to constitute an agreed-upon
method for settlement a procedure must bind all the
parties to the dispute, including the employer) The
Employer is not bound here. Although each of the
unions is bound to the IJDB by virtue of their mem-
bership in the Building and Construction Trades De-
partment, AFL-CIO. Western Caissons has not obli-
gated itself to resolve work assignment disputes
through that procedure. While the Employer's last
collective-bargaining agreement with Operating En-
gineers Local 77 obligates it to refer disputes to the
IJDB that obligation was specifically rescinded by
the plain language of article 16 of the National
Agreement which was later entered into by the Em-
ployer and IUOE. Since the parties have not agreed
upon a voluntary method of settling this jurisdic-
tional dispute, this dispute is properly before the
Board for determination under Section 10(k) of the
Act.
Our dissenting colleague characterizes the threats
to strike, made by Laborers and Operating Engineers
to obtain a favorable work assignment from the Em-
ployer, as "mere paper threats delivered only for the
purpose of activating this 10(k) proceeding." The
N.I.. B v. Pla 'erern 1,Lo al1 ntn 'N . )pOerl" Pt l trr' -
ment ,fasonm Interniatiunl .4 si 4 FL ( 1(. ,t al //7cd State 7Ie Trc
ra:: (, 4 04 S. I 116 197 I )
predicate for this conclusion is based on the fact that,
in the past, the Employer had always assigned such
work to a composite crew composed of laborers and
operating engineers and prior to the threats here in
question had given no indication that it was con-
templating changing its existing practice. The dissent
further argues that the National Agreement between
the Employer and International Unions of the La-
borers and the Operating Engineers was entered into
for the purpose of avoiding a resolution of such dis-
putes by the IJDB and in particular to protect them-
selves from any claim the Carpenters might make for
such work.
It seems to us that our colleague attempts to prove
too much. If, in fact, the National Agreement was
nothing more than a mere subterfuge to overcome
the work jurisdiction of Carpenters, it would certain-
ly show that Laborers and Operating Engineers had
a reasonable fear that Carpenters might prevail
again, as they had once in the past, in overturning
the results of the Employer's work assignment. If that
were the case, and we do not believe it is. the threats
to strike by Laborers and Operating Engineers can
hardls be characterized as mere paper threats.
In our view, the threats to strike were both "valid
and legitimate": i.e.. real and intended. TheN were in
response to a prior arbitration award which found in
favor of Carpenters and left unresolved for future
purposes the question as to whether the Employer
under the then existing collective-bargaining agree-
ments could continue its past practice of assigning
the type of work here involved to a composite crew
composed of laborers and operating engineers. In
such circumstances. it certainly was not unreason-
able for Laborers and Operating Engineers to fear
that the Employer might change its assignment prac-
tice in order to avoid the risk of another unfavorable
arbitration award.
With respect to the motive behind the decision to
enter into the National Agreement. there may be a
suspicion. but certainly not any proof, that it was
prompted by a desire to defeat claims by Carpenters
to this work. In fact, the signing of a National Agree-
ment simply for the purpose of avoiding the jurisdic-
tion claims of a local union would seem to be rather
an extreme measure to take in remedying the prob-
lem. Furthermore, there are many legitimate reasons
why a company which performs work on a na-
tionwide basis would be desirous of reaching a na-
tional agreement with unions with which it deals on a
regular basis. When, as here, the parties voluntarily
decide to broaden the scope of the collective-bar-
gaining arrangement, it is not proper for us to con-
demn or ignore such an agreement merely because it
supersedes certain provisions previously agreed to by
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties. To say otherwise is to hold that once a
collective-bargaining relationship has been entered
into, the terms are cast in concrete and even the mu-
tual desire of the contracting parties cannot change
them. Here the National Agreement between the
Employer and the International Union of Laborers
and Operating Engineers establishes its own proce-
dure for the resolution of jurisdictional disputes and
specifically provides that these procedures supersede
any previously agreed-upon methods of resolving ju-
risdictional disputes between the Employer and the
two International Unions' affiliates. In sum, the par-
ties by virtue of the National Agreement have elected
to use the procedures under Section 10(k) of our Act
to resolve such disputes, rather than submit them to
the IJDB for a determination. Such is their right un-
der the law. For if parties having once agreed to a
private procedure for resolving jurisdictional dis-
putes have changed their minds and eliminated that
procedure, we merely engage in a sham if we deny
them access to our process under Section 10(k) on
the ground that they have an agreed-upon method of
resolving their dispute.
E. Merits of the Dispute
Section 10(k) if the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various factors. The
following factors are relevant in making a determina-
tion of the dispute before us.
1. Collective-bargaining agreements
As discussed above, Carpenters, Laborers, and
Operating Engineers all have collective-bargaining
agreements with Western Caissons. Each of the con-
tracts contain provisions assigning the disputed work
claimed by the respective labor organizations to em-
ployees they represent. We conclude that the provi-
sions of the various collective-bargaining agreements
are of little value in determining the merits of the
dispute.
2. Employer past practice
The Employer has performed many thousands of
drilled shaft foundation construction jobs through-
out the country. Its uniform practice has been to as-
sign the disputed work to a composite crew consist-
ing of employees represented by Laborers and
Operating Engineers. Employer practice favors an
award to employees represented by Laborers and
Operating Engineers.
3. Economy, efficiency of operation, and safety
The record indicates that the drilled shaft founda-
tion construction requires both laborers and operat-
ing engineers to perform tasks other than those in
dispute in this proceeding. However, this is not the
case with respect to employees represented by Car-
penters. Thus, according to the testimony of both
Western Caissons' vice president, Peter Kozicki, and
vice president of the Association of Drilled Shaft
Contractors, Gormon Dale Holt, assigning the dis-
puted work to carpenters usually requires adding a
member to the crew rather than merely replacing an-
other worker, resulting in an increase in an employ-
er's labor costs. Moreover drilled shaft foundation
work involves a certain element of danger, resulting
primarily from the fact that the work involves the
swinging of heavy caissons around deep shafts, and
as more workers are involved, the chances are in-
creased that a dangerous or even possibly fatal injury
may result. The addition of a carpenter would also
tend to decrease efficiency of operation by requiring
an increased coordination of effort among the vari-
ous workers involved and although this loss of effi-
ciency might not be substantial, nonetheless, we are
unable to say that it would be insignificant. Thus, the
factors of economy, efficiency of operation, and
safety favor an assignment of the disputed work to
employees represented by Laborers and Operating
Engineers.
4. Employer preference
Western Caissons assigned the disputed work to
composite crews consisting of employees represented
by Laborers and Operating Engineers and it is satis-
fied with the results of its assignment and maintains
a preference for an assignment of the work to em-
ployees represented by Laborers and Operating En-
gineers. Employer preference favors an assignment
of the disputed work to employees represented by
Laborers and Operating Engineers.
Conclusion
Upon the record as a whole, and after full consid-
eration of all the relevant factors involved, we con-
clude that employees represented by Laborers and
Operating Engineers are entitled to perform the dis-
puted work. In making this determination, we are
assigning the disputed work to the employees of
Western Caissons who are represented by Laborers
and Operating Engineers, but not to those Unions or
their members.
LABORERS' DISTRICT COUNCIL OF WASHINGTON, D.C. 1165
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
Employees of Western Caissons, Inc., represented
by the Laborers' District Council of Washington, D.
C. and Vicinity, affiliated with Laborers' Internation-
al Union of North America, AFL-CIO, are entitled
to perform the work of loading, unloading, stacking,
setting, and removing temporary and permanent
steel casings used in the construction of drilled or
augured holes for foundation piers. Employees of
Western Caissons, Inc., represented by the Interna-
tional Union of Operating Engineers, AFL-CIO, are
entitled to perform the work of welding and burning
of temporary and permanent steel casings used in the
construction of drilled or augured holes for founda-
tion piers.
CHAIRMAN FANNING. dissenting:
I would quash the notice of hearing in this case.
Contrary to the majority, I would find that there was
no valid and legitimate threat of strike by either La-
borers or Operating Engineers and that Western
Caissons has not been coerced in its assignment of
the disputed work. In my judgment, the facts estab-
lish that the alleged threats were delivered as part of
a coordinated effort to obtain the work assignment
preferred by the Employer and charged Unions by
circumventing the Impartial Jurisdictional Disputes
Board (IJDB) and placing the dispute before the
Board for resolution. In short, I believe that the
threats were mere paper threats delivered only for the
purpose of activating this 10(k) proceeding.
This dispute developed out of the Employer's ini-
tial project involving drilled shaft foundation con-
struction in the Washington, D.C., area-at the Na-
tional Naval Medical Center. Prior to 1976 in the
Washington area a fairly uniform practice had devel-
oped of including employees represented by Carpen-
ters in composite crews used in drilled shaft founda-
tion construction. However, it was Western Caissons'
uniform practice to assign the disputed work to com-
posite crews of laborers and operating engineers.
In July 1976, when work was initiated at the Na-
tional Naval Medical Center, Western Caissons had
entered into agreements covering the disputed work
with Laborers, Operating Engineers Local 77, and
Carpenters. The agreement with Laborers provided
for settlement of jurisdictional disputes through arbi-
tration, as did the contract with the Carpenters.
However, the contract with Operating Engineers Lo-
cal 77 provided that jurisdictional disputes were to be
settled through referral to the IJDB.
In accordance with its customary practice, West-
ern Caissons assigned the work t the National Na-
val Medical Center to a composite crew of laborers
and operating engineers. Carpenters thereupon initi-
ated arbitration under its contract which ultimately
resulted, in November 1976, in an award finding
Western Caissons' assignment of the disputed work
at the National Naval Medical Center to be in viola-
tion of its contract with Carpenters.
In August 1976, shortly after the jurisdictional dis-
pute arose at the National Naval Medical Center and
while the aforementioned contracts were still in ef-
fect, Western Caissons entered into a National
Agreement with the Laborers' International Union
and the IUOE. This National Agreement covered
drilled shaft foundation construction, included a pro-
vision assigning the work exclusively to laborers and
operating engineers, and established a new method
for settling jurisdictional disputes arising over the
work it covered.4 In article 16, the National Agree-
ment provides that if an agreement between an em-
ployer signatory to the National Agreement and a
local union or district council contains a provision
which conflicts with the terms of the National Agree-
ment, then the terms of the National Agreement shall
prevail. In the next sentence the National Agreement
states that "(a)ny procedure established by a local
agreement for the resolution of jurisdictional dis-
putes shall be deemed to conflict with this agree-
ment."
Sometime during the first half of 1977, Western
Caissons contracted to provide the drilled shaft foun-
dation construction at National Institutes of Health
and Crystal Square No. 3. Well before Western Cais-
sons made any assignment of the work at those sites,
in the case of Laborers it being over 2 months prior,
Laborers and Operating Engineers threatened to
strike in the event Western Caissons deviated from
its normal practice and included carpenters on the
composite crews. Yet at no time had Western Cais-
sons given any indication that it intended to modify
its longstanding and preferred policy of assigning the
disputed work exclusively to a composite crew of la-
borers and operating engineers. And indeed, when
on June 17, 1977, Western Caissons assigned the
work at the two locations it maintained its customary
practice.
Careful consideration of the foregoing leads in-
exorably to the conclusion that there was no real
threat of strike by either of the charged Unions. At
the time the disputed work initially became the sub-
ject of contention the Employer, by the terms of its
4See fnt 2. vura
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with Operating Engineers Local 77, had
agreed to resolve jurisdictional disputes through the
IJDB. Moreover, and signigicantly, each of the labor
organizations here is, and remains, a member of the
Building and Construction Trades Department,
AFL-CIO, and therefore bound to the IJDB. The
Board has consistently held since the establishment
of the new IJDB that in such situations there exists
an agreed-upon method for voluntary settlement)
The Employer and the charged Unions, however,
raise the National Agreement to refute the conten-
tion that there exists an agreed-upon settlement pro-
cedure because under that agreement the Employer's
contract with Operating Engineers Local 77 is no
longer operative with respect to the IJDB.
In my view it is clear that the Employer and the
charged Unions have manipulated the facts to avoid
submission of the dispute to the IJDB. Thus, the very
timing of the Employer and charged Unions entering
into the National Agreement raises the suspicion that
it was entered into in direct response to Carpenters'
claim. The Agreement was signed in early August
1976, only shortly after Carpenters challenged West-
ern Caissons' work assignment at the National Naval
Medical Center.
Also significant, in the context of this dispute, are
the provisions of the National Agreement. Prior to
signing the National Agreement Western Caissons
had contracts with Laborers and Operating Engi-
neers Local 77 covering virtually every facet of
drilled shaft foundation work. The National Agree-
ment adds little, if anything, to these prior agree-
ments other than to attempt to officially assign the
disputed work to a composite crew of laborers and
operating engineers and to establish a new procedure
for settling jurisdicational disputes. In establishing
this new settlement procedure, however, it attempts
to preclude any alternative method for settling work
assignment controversies.
It seems apparent that the purpose of entering into
the National Agreement was to alter the arrange-
ments for settling jurisdictional disputes, avoid the
IJDB, and obtain a substantial advantage in a dis-
pute with Carpenters. Under the National Agree-
ment, Western Caissons and the charged Unions can
be almost certain that their preferred work assign-
ment will not be disturbed. Its jurisdictional dispute
settlement procedure provides that dispute will be
Painters Local 203. International Brotherhood of Painters ind Allied
Trades (E. 0. Brunner Plastering ('onmpany). 234 NLRB 235 (1978): U'nited
Association of Journemen and Apprentices of the Plumbing and Pipe rriting
Industry of the Untied Stares and (anada. Local Union No. 447. AFI ('10
(Capitol Air (onditioning, nc . 224 NI.RB 985 (1976); and Pipeftrrers l.orl
No. 195, l'nited As.voiation of Journtnlen d& Alpprentries of the Plutnhing &
Pipefrtting Industry of the l'niued Statre and Canada ('leteltand 14'reking
(ompany), 218 NLRB 172 (1975).
negotiated between the contending unions, giving
each the ability to veto any arrangement not in con-
formity with its preference. If the negotiation proce-
dure fails to resolve the dispute the National Agree-
ment provides that the employer's work assignment
prevails. Given Western Caissons' steadfast policy of
assigning the disputed work to laborers and operat-
ing engineers, the National Agreement assures that
any resolution of a jurisdictional dispute under its
provisions would result in the work being done by
employees represented by the charged Unions. The
only alternative for Carpenters would be a 10(k) ac-
tion which, given the Employer's preference, would
afford them little chance of success.
Subsequent events leading to this 10(k) action
being brought before the Board further substantiate
my conclusions. Western Caissons was engaged to
provide the work at the National Institutes of Health
and Crystal Square No. 3 sometime during the first
half of 1977. Well before it assigned the work at
those locations Laborers and Operating Engineers
delivered a threat to strike if Western Caissons devi-
ated from its customary work assignment. Yet at no
time had the Employer indicated that it intended to
alter its practice, and it in fact did not do so. Why
then the threats?6
In my judgment, the "threats" were made to ob-
tain the Board's imprimatur for the assignment pre-
ferred by the Employer and charged Unions. Car-
penters elected to pursue its claim to the disputed
work through the arbitration procedure contained in
its agreement with Western Caissons and exhibited
no intention of striking, threatening to strike, or
otherwise engaging in conduct designed to coerce the
Employer into assigning the disputed work to its
members. Consequently, to obtain Board sanction
for their assignment it became incumbent upon the
charged Unions to threaten Western Caissons,
though they had no basis to fear that an unfavorable
work assignment might be forthcoming. Western
My colleagues contend that the "threats" were both alid and legiti-
mate: i.e.. real and intended. Ihey conclude that under the circumstances
the threats were reasonable in light of the charged Unions' fear that West-
ern Caissons might change its work assignment practice in order to avoid
the risk of another unfavorable arbitration award. In my view, however, the
reasonable response would have been for Laborers and Operating Engineers
to have asked the Employer if it intended to modify its longstanding work
assignment policy rather than deliver unnecessary threats. Ihe fact that the
threats were delivered without an) such inquiry supports my viewpoint that
they were made to trigger this proceeding. particularly since Western Cais-
sons never indicated that it intended to alter its long-established work as-
signment practice. and since the charged Unions were aware that the Em-
ployer had strotngl) resisted Carpenters' previous claims to the disputed
work i the Washington area. In this context. the Charged Unions had little
basis to fear a modification of the work assignment policy and their deliver)
of threats. absent any attempt to discover the Employer's intent concerning
future assignments. can hardly be termed to be a reasonable course of con-
duct
LABORERS' DISTRICT COUNCIL OF WASHINGTON. D.C. 1167
Caissons naturally fulfilled its role by filing
8(b)(4)(D) charges.
Under these circumstances it would strain credu-
lity beyond reasonable limits to ignore the underly-
ing factual basis of this dispute and find that there
was a real attempt to coerce the Employer to assign
the work to employees represented by the charged
Unions. I am unable to accept the proposition that
the Board must accept any threat on face value as
sufficient to establish reasonable cause. Following
such an approach invites misuse and abuse of the
Board's processes. As members of the Building and
Construction Trades Department, AFL-CIO, the
Laborers' International Union and the IUOE are
bound to the IJDB and committed to utilize that set-
tlement procedure in resolving work assignment dis-
putes. And not only had Western Caissons, by its last
contract with Operating Engineers Local 77, agreed
to be bound to the IJDB, but it also certainly knew
that the Unions were repudiating their obligations to
the IJDB when they entered into the National Agree-
ment. I see no reason to reward this calculated effort
to breach the parties' binding commitments to the
7 The question, as I see it. is not whether the parties have the right as nm!
colleagues find to use the procedures under Sec. 10k) of the Act to resolve
jurisdictional disputes. but whether the Board will allow the Emploer and
charged Unions to perpetuate a sham bh manipulating a dispute for their
own interests. The Board has long encouraged peaceful resolution of Juris-
dictional disputes through private settlement mechanisms. Ihe fact that the
Emplo)er and charged Unions intended to shut out the Carpenters on a
national basis does not detract from the fact that they were attempting to
avoid the voluntary adjustment of this dispute pursuant to their contractual
obligations
IJDB.7 To give effect to the National Agreement's
jurisdictional dispute provisions has just such an ef-
fect. Furthermore, it encourages the abandonment of
private settlement mechanisms whenever parties per-
ceive it to be advantageous to their self-interest to do
so. Thus, as this case demonstrates, to accept any
threat on face value discourages parties from pursu-
ing private settlement procedures and makes it virtu-
ally impossible for these disputes to be settled except
by the Board.
In Section 10(k) Congress expressed its preference
for settlement of jurisdictional disputes among the
parties without Board intervention whenever possi-
ble.8 Automatic acceptance of all alleged disputes
thwarts this clear expression of Congressional policy.
Finally, such a policy improperly extends the juris-
dictional bounds of the statute. As stated by the Su-
preme Court, "The Act and its remedies for 'jurisdic-
tional' controversies come into play only by a strike
or threat of strike." (Emphasis supplied.) A mere
paper threat of strike manufactured by parties solely
for the purpose of initiating a 10(k) proceeding is
clearly not within the purview of activity which was
designed to activate the Board's jurisdiction in these
cases. Accordingly, for the foregoing reasons I would
find that there is no reasonable cause to believe that
Section 8(b)(4)(D) has been violated and would
quash the notice of hearing. 0
See 93 Dail) (Cong. Rec 4115 (1974!.
( lrc, . iWetminghouse El' itri (rp.. 375 .S. 261., 263 (1964)
C (.hitcago Tiplographical L.non ¥t. .4 A Fl.- CIO (ee Paintrng (mpa-
it. Inc), 155 NLRB 963 (19651.