Laborers Local 1030 (Exxon Chemical Co.)

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 706 (N.L.R.B. 1992)

706
308 NLRB No. 98
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise indicated.
Laborers International Union of North America,
Local 1030, AFL–CIO and Exxon Chemical
Company and Exxon Research and Engineer-
ing Company and Perimeter Insulation, Inc.
Cases 22–CD–603 and 22–CD–604
August 31, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 11, 1992,1 amended charges in this 10(k)
proceeding were filed by Employers Exxon Chemical
Company and Exxon Research and Engineering Com-
pany (Exxon) in Case 22–CD–603, and by Employer
Perimeter Insulation, Inc. (Perimeter) in Case 22–CD–
604. The charges allege that the Respondent, Laborers
International Union of North America, Local 1030,
AFL–CIO (Laborers Local 1030), violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
Exxon and Perimeter to assign certain work to employ-
ees it represents rather than to employees represented
by International Association of Heat and Frost
Insulators and Asbestos Workers, Local 32, AFL–CIO
(Asbestos Workers Local 32). The hearing was held
April 7, 1992, before Hearing Officer Joseph Calafut.
Thereafter, the parties filed briefs in support of their
position.
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, Perimeter Insulation, Inc., is a New
Jersey corporation with an office and place of business
in Middlesex, New Jersey, where it is engaged in as-
bestos abatement and reinsulation. It annually derives
gross revenues in excess of $1 million and purchases
and receives goods and materials valued in excess of
$50,000 directly from points located outside the State
of New Jersey. The parties stipulate, and we find, that
Perimeter is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that Laborers
Local 1030 and Asbestos Workers Local 32 are labor
organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Exxon Chemical Company has contracted with Pe-
rimeter for asbestos removal and reinsulation work at
Exxon’s Linden, New Jersey jobsite. Perimeter’s con-
tract at Linden covers removal of asbestos, primarily
from pipes and ducts, and reinsulation with nonasbes-
tos materials. Exxon Research and Engineering Com-
pany has contracted with Perimeter for asbestos re-
moval and reinsulation work at Exxon’s Florham Park,
New Jersey facility. Perimeter’s contract at Florham
Park covers removal of asbestos-containing material in
return air systems, pipes, and ducts and reinsulation
with nonasbestos materials.
Perimeter uses Asbestos Workers Local 32 members
to perform this work. Perimeter has had a collective-
bargaining agreement with Asbestos Workers Local 32
since 1984. The current agreement covers the period
September 19, 1990, through September 18, 1993. Pe-
rimeter successfully bid for the work in question using
Asbestos Workers Local 32 wage rates. Perimeter does
not have a collective-bargaining agreement with Labor-
ers Local 1030. Exxon does not have a collective-bar-
gaining agreement with either Laborers Local 1030 or
Asbestos Workers Local 32.
The parties stipulated that on February 18 and 19,
Laborers Local 1030 picketed the Perimeter worksite
at Exxon’s Linden facility with signs that said, ‘‘Infor-
mational to the Public, Perimeter asbestos work at this
job site does not have a collective bargaining agree-
ment with Laborers Local 1030 AFL–CIO.’’ In smaller
print the placard stated, ‘‘This sign is not intended to
interfere with nor restrain nor coerce the rights of any-
one leaving or entering the job.’’ The parties further
stipulated that James Castaldo, business manager of
Laborers Local 1030, made demands on both Perimeter
and Exxon for the asbestos abatement work being per-
formed by Perimeter at Exxon’s Linden and Florham
Park sites. Asbestos Workers Local 32 Business Man-
ager James Dwyer testified that employees represented
by Local 32 claim the work that they are currently per-
forming at Exxon’s Linden and Florham Park sites and
would undertake all lawful means to protect it.
Exxon Project Manager Rich Palluzi testified as fol-
lows concerning several phone conversations with
Castaldo from December 1991 through February 1992.
Castaldo called Palluzi in December to obtain informa-
tion about the job being bid at Florham Park. Castaldo
told Palluzi that it was clearly Laborers Local 1030’s
work and requested that Exxon include nine Laborers
Local 1030 signatory contractors on the bid list. In
January 1992, Castaldo demanded that the work at
Florham Park be done by employees represented by
Laborers Local 1030 and he told Palluzi that the work
707LABORERS LOCAL 1030 (EXXON CHEMICAL CO.)
2 Palluzi also testified that Laborers Local 1030 picketed Exxon’s
Linden facility on several occasions in 1988 and on at least one or
more occasions in 1989 with the same, if not identical, informational
picket signs. Palluzi stated that the picketing was engendered by
Castaldo’s demand for the same work that Perimeter was performing
at that time pursuant to its contractual relationship with Exxon.
3 Jt. Exh. 3. This International memorandum of understanding pro-
vides:
1. The removal of all insulation materials, whether they con-
tain asbestos or not, from mechanical systems (pipes, boilers,
ducts, flues, breechings, etc.) is recognized as being the exclu-
sive work of the Asbestos Workers.
2. On all mechanical systems (pipes, boilers, ducts, flues,
breechings, etc.) that are going to be scrapped, the removal of
all insulating materials whether they contain asbestos or not
shall be exclusive work of the Laborers.
3. The removal of all asbestos-containing materials from
walls, ceiling, floors, columns and all other non-mechanical
structures and surfaces, etc., is recognized as being the exclusive
work of the Laborers.
4. The term ‘‘removal’’ as used in this Agreement shall not
include the sealing, labeling and dropping of scrap material into
the appropriate containers. After drop, final disposal shall be the
work of the Laborers.
5. The loading at the designated area of all materials that have
been removed, bagged and tagged, as well as cleanup and all
unloading, burying and other work required at the disposal site
is recognized as being the exclusive work of the Laborers.
The agreement was amended in 1988 to delete the word ‘‘not’’
from par. 4. The agreement requires that the Local Unions attempt
to settle any dispute and, if they are unable to arrive at a settlement,
the Locals will submit their positions to the Internationals for inves-
tigation and attempted dispute resolution. If the Internationals cannot
resolve the dispute, it will be referred to the offices of the general
presidents.
‘‘would go most efficiently and most effectively with
no problems’’ if a Laborers Local 1030 contractor was
awarded the job.
According to Palluzi’s testimony, Castaldo called
him again in February after learning that Exxon had
awarded the Florham Park work to Perimeter, ‘‘the
same company that did the work in Linden.’’ Castaldo
told Palluzi that ‘‘there clearly was going to be prob-
lems’’ with the job and that he had tried to work out
a solution by submitting a list of contractors, but
Exxon had not been interested in solving the problem.
Palluzi testified that ‘‘[i]t was very clear in context
that [Castaldo] meant that there was going to be a
labor dispute, picketing and just general dispute be-
tween the two unions’’ because shortly after this con-
versation concerning Laborers Local 1030 demands for
the Florham Park work, Laborers Local 1030 engaged
in the February 18 and 19 picketing of Perimeter’s
worksite at Exxon’s Linden facility.2
Perimeter President John Hreha also testified that
Castaldo called his office in February and claimed the
Florham Park work. Hreha informed Castaldo that Pe-
rimeter was an Asbestos Workers Local 32 contractor.
According to Hreha, Castaldo then informed him that
there was an International agreement providing that the
Florham Park job was Laborers Local 1030 work and
‘‘if [Perimeter] didn’t use his people there were going
to be problems.’’ Castaldo was asked about this con-
versation on cross-examination by Asbestos Workers
Local 32.
Q. Now in this recent conversation did you
threaten him with problems there?
A. I told him that he would do what he has to
do and I’ll do what I have to do, there was no
verbal threats.
Q. Well what did you mean by that, when you
say I’ll do what I have to do, what did you mean
by that?
A. Put up an informational picket line, that’s
the only recourse I have, you’re familiar with
them aren’t you?
The record establishes that on April 17, 1985, the
International Association of Heat and Frost Insulators
and Asbestos Workers and the Laborers’ International
Union executed an International agreement to prevent
jurisdictional disputes with respect to the removal of
all asbestos-containing materials.3 The parties stipu-
lated that Exxon was not bound by or signatory to this
International agreement.
The record also contains an August 19, 1991 letter
from Angelo Fosco, general president of Laborers
International Union, to Castaldo stating that ‘‘on Octo-
ber 1, 1987 the Laborers’ International Union awarded
jurisdiction over all aspects of asbestos remediation
work to your Local Union.’’ This letter further states,
‘‘Our records reflect that your Local Union has stead-
fastly refused at all times to enter into any agreement
with the Asbestos Workers Union or to accept any
such jurisdictional proposal made by any International
Union.’’ The letter concludes that under these cir-
cumstances the ‘‘only governing instrument’’ is the
collective-bargaining agreement between Laborers
Local 1030 and its employers covering asbestos abate-
ment work.
B. Work in Dispute
The work in dispute is the asbestos abatement work
being performed by Perimeter at Exxon jobsites lo-
cated in Linden and Florham Park, New Jersey.
C. Contentions of the Parties
Laborers Local 1030 contends that the April 17,
1985 International agreement constitutes an agreed-
upon method for resolution of the dispute which is
binding on the parties. Laborers Local 1030 submits
that, pursuant to the 1985 International agreement, it
may clearly claim the work being conducted by Perim-
eter with Asbestos Workers Local 32 members at both
Exxon facilities.
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We also note that the Respondent does not dispute in this pro-
ceeding that there is reasonable cause to believe that a violation of
Sec. 8(b)(4)(D) has occurred.
Both Exxon and Perimeter contend that there is rea-
sonable cause to believe that Section 8(b)(4)(D) has
been violated. They argue that any ambiguity in
Castaldo’s February 1991 statements that there ‘‘were
going to be problems’’ if Laborers Local 1030 did not
perform the asbestos abatement work at the Florham
Park facility was resolved by Laborers Local 1030’s
subsequent picketing at Exxon’s Linden facility on
February 18 and 19 to obtain the work in dispute.
They deny the existence of any agreed-upon method
for resolution of this dispute that is binding on the par-
ties. They contend that the August 19, 1991 letter from
the Laborers International to Laborers Local 1030 con-
stituted an abandonment, repudiation, and termination
of the 1985 International agreement. They conclude
that the work in dispute should be performed by em-
ployees represented by Asbestos Workers Local 32
based on factors of collective-bargaining agreements;
employer preference and past practice; economy and
efficiency of operations; skills, training, and expertise
concerning the performance of both asbestos removal
and reinsulation work; and industry and area practice.
Asbestos Workers Local 32 adopts the brief filed on
behalf of Exxon and Perimeter denying the existence
of any agreed-upon method for resolution of this dis-
pute and affirming that Asbestos Workers Local 32
members are properly assigned the work in dispute.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute under 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 that the par-
ties have not agreed on a method for the voluntary ad-
justment of the dispute. We find that there is reason-
able cause to believe that one purpose of Laborers
Local 1030’s picketing of the Perimeter worksite at
Exxon’s Linden facility on February 18 and 19 was to
force these Employers to reassign particular asbestos
abatement work at Exxon’s Linden and Florham Park
facilities to members of Laborers Local 1030 rather
than to Perimeter employees represented by Asbestos
Workers Local 32. As indicated, the parties stipulated
that Laborers Local 1030 made demands on both Pe-
rimeter and Exxon for the disputed work being per-
formed by Perimeter at Exxon’s Linden and Florham
Park sites. The Board has held that a jurisdictional dis-
pute exists within the meaning of Sections 8(b)(4)(D)
and 10(k) when a union pickets for the purpose of ob-
taining an employer’s agreement to a contract that as-
signs to employees represented by the picketing union
work already assigned to other employees at the time
of the contract demand and picketing. Operating Engi-
neers Local 825 (Building Contractors Assn.), 118
NLRB 978, 981, 983–984 (1957).
Laborers Local 1030 does not claim that there is no
reasonable cause to believe that it violated Section
8(b)(4)(D) because its picketing at Linden was for the
purpose of advising the public that the Employers did
not have a contract with Laborers Local 1030. We
note, however, that even assuming, arguendo, that the
picketing had an informational objective, it is well set-
tled that, as long as one object of picketing is to force
an employer to assign particular work to employees
represented by a union, rather than to the employer’s
employees, the picketing comes within the scope of
Section 8(b)(4)(D). Carpenters (Dooley Construction),
300 NLRB 878, 880 (1990). See also Teamsters Local
50 (Schnabel Foundation), 295 NLRB 68, 70 (1989).
We find that the Laborers Local 1030’s picketing at
Linden had such an object.
We also find reasonable cause to infer that Laborers
Local 1030’s oblique reference to unspecified prob-
lems at Florham Park meant unlawful picketing as sub-
sequently occurred at Linden. Thus, in February 1992,
Laborers Local 1030 threatened Exxon and Perimeter
that if they did not use Laborers Local 1030 members
to perform the Florham Park work, there ‘‘were going
to be problems’’ with the job. Vague or guarded
threats which are broad enough to encompass the pos-
sibility of illegal secondary action are unlawful where
the words used are given meaning and colored by sub-
sequent unlawful conduct attributable to the respond-
ent. See generally Electrical Workers IBEW Local 5
(Jonel Construction), 164 NLRB 455 (1967). The criti-
cal considerations are the specific language used and
surrounding conduct and events. See generally Car-
penters (Apollo Dry Wall), 211 NLRB 291 fn. 1
(1974).
We note that Laborers Local 1030’s picketing of Pe-
rimeter’s worksite at Exxon’s Linden facility, where
Perimeter was performing the same type of work for
Exxon, occurred shortly after Laborers Local 1030
threatened both Exxon and Perimeter with unspecified
problems if its members were not used to perform the
work at the Florham Park job. The Linden picketing
thus lent meaning to the alleged threats concerning
Florham Park and left little doubt as to what kind of
‘‘problems’’ would follow if Exxon and Perimeter
failed to accede to Laborers Local 1030’s demands to
reassign the disputed work to its members. Cf. Labor-
ers Local 1191 (Morrison Co.), 209 NLRB 310, 311
(1974). In fact, as noted, Castaldo expressly acknowl-
edged the nexus between his threats that there were
going to be problems at Florham Park if his people
were not used to perform the work and the picketing
shortly thereafter at Linden.4
709LABORERS LOCAL 1030 (EXXON CHEMICAL CO.)
5 Laborers Local 1030 introduced a copy of its standard agreement
as Jt. Exh. 2.
We further find that there is no agreed-upon method
for the voluntary adjustment of the dispute to which all
parties are bound. An agreement that constitutes ‘‘an
agreed method of voluntary adjustment,’’ and thus de-
prives the Board of 10(k) jurisdiction, must be binding
on all parties to the dispute. An employer being pick-
eted or threatened to force reassignment of disputed
work is a ‘‘party’’ to the dispute. In the absence of the
employer’s agreement to be bound by the private mode
of settlement, the Board may properly proceed to a
10(k) hearing. NLRB v. Plasterers Local 79 (South-
western Construction), 404 U.S. 116 (1971).
The Board has consistently held that an employer
that is not a party to an International agreement pur-
porting to award work to one union is not bound by
that agreement. Laborers Local 132 (Brockway Glass),
224 NLRB 117, 119–120 (1976). Neither Exxon nor
Perimeter is a party to the April 17, 1985 International
agreement between the International Association of
Heat and Frost Insulators and Asbestos Workers and
the Laborers International that purports to govern here.
The collective-bargaining agreement between Perimeter
and Asbestos Workers Local 32 makes no reference to
this International agreement, and there is no contention
or evidence showing that the Employers are otherwise
bound by that agreement. In fact, the parties stipulated
to the contrary.
We find that the 1985 International agreement does
not constitute an agreed-upon method for the voluntary
adjustment of this dispute to which all parties are
bound. No party contends, and the record contains no
evidence showing, that there exists any other agreed-
upon method for the voluntary adjustment of this dis-
pute that binds all the parties. Accordingly, we find
that this dispute is properly before the Board for deter-
mination under Section 10(k) of the Act.
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 of 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 this dispute.
1. Certifications and collective-bargaining
agreements
Neither Laborers Local 1030 nor Asbestos Workers
Local 32 has been certified by the Board as the collec-
tive-bargaining representative of any of the employees
involved in this dispute. We conclude that this factor
does not favor an award of the disputed work to em-
ployees represented by either union.
Perimeter has had a collective-bargaining relation-
ship with Asbestos Workers Local 32 since about
1984. Perimeter’s current agreement with Asbestos
Workers Local 32 is effective September 19, 1990,
through September 18, 1993. Article II of the collec-
tive-bargaining agreement, entitled ‘‘Work Jurisdic-
tion,’’ covers the asbestos removal and reinsulation
work currently being performed by Asbestos Workers
Local 32 members for Perimeter at Exxon’s Linden
and Florham Park facilities. Perimeter President John
Hreha affirmed that this contract obligated him to use
Asbestos Workers Local 32 members to perform the
asbestos removal and reinsulation work. He also testi-
fied that Perimeter bid for the work in question using
Asbestos Workers Local 32’s contractual wage and
benefit package. There is no collective-bargaining
agreement between Perimeter and Laborers Local
1030.5
We conclude that the factor of collective-bargaining
agreements favors an award of the disputed work to
employees represented by Asbestos Workers Local 32.
2. Employer preference and past practice
John Hreha testified that since Perimeter’s inception
in 1984, it has performed more than 100 asbestos re-
moval jobs. Perimeter has employed only Asbestos
Workers Local 32 members for this work. Hreha af-
firmed that Perimeter has been satisfied with the per-
formance of Asbestos Workers Local 32 workers.
Hreha testified that Perimeter’s preference was to as-
sign the disputed work to its own employees rep-
resented by Asbestos Workers Local 32. Palluzi testi-
fied that Exxon also had a preference for Asbestos
Workers Local 32 to perform the asbestos removal and
reinsulation work at both facilities.
We find that the factors of employer preference and
past practice favor an award of the work to employees
represented by Asbestos Workers Local 32.
3. Economy and efficiency of operations
Palluzi testified that Exxon has a real economic in-
terest in ensuring that the time and materials contracts
at issue were performed as efficiently as possible be-
cause any cost inefficiencies were immediately passed
on to Exxon. Palluzi cited the ability of Asbestos
Workers Local 32 to provide a more effective way of
performing the work for a variety of reasons. He em-
phasized that, unlike Laborers Local 1030 employees,
Asbestos Workers Local 32 employees could perform
reinsulation work. Palluzi stated that there is signifi-
cant interplay between asbestos removal and
reinsulation and that it is much more efficient if the
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same contractor performs both functions. Exxon de-
sired to have only one union on site because that
would facilitate flexibility in job assignment and craft
interchange, eliminate problems engendered by juris-
dictional disputes between unions, and provide payroll
savings associated with only one set of supervisors.
Hreha testified that because Laborers Local 1030
employees cannot do reinsulation work, Perimeter es-
chewed splitting the work between the Unions. That
would require two sets of foremen. Hreha also testified
that poor historical interaction between the two Locals
would result in further inefficiency.
We find that the factor of economy and efficiency
of operation favors an award of the disputed work to
employees represented by Asbestos Workers Local 32.
4. Area and industry practice
Both Locals are engaged in asbestos abatement work
within the State of New Jersey. Therefore, this factor
does not favor an award of the disputed work to em-
ployees represented by either Union.
5. Relative skills and training
Members of both Locals possess the required New
Jersey State certification for asbestos abatement work,
and both Locals provide regular training for members
in asbestos removal work. Therefore, relative skills and
training do not favor an award of the disputed work
to employees represented by either union.
6. The interunion agreement
We do not accord the 1985 International agreement
significant weight for several reasons. Laborers Inter-
national Union’s August 19, 1991 letter appears to ter-
minate the agreement. The agreement is not referred to
in Perimeter’s extant contract with Asbestos Workers
Local 32. There is no evidence that Exxon or Perim-
eter otherwise have agreed to be bound by the agree-
ment. Finally, both Locals continue to claim the work
in dispute.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Asbestos Workers
Local 32 are entitled to perform the disputed work. We
reach this conclusion relying on the factors of collec-
tive-bargaining agreements, employer preference and
past practice, and economy and efficiency of oper-
ations. In making this determination, we are awarding
the work to employees represented by Asbestos Work-
ers Local 32, 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 Perimeter Insulation, Inc., rep-
resented by International Association of Heat and Frost
Insulators and Asbestos Workers, Local 32, AFL–CIO,
are entitled to perform the asbestos abatement work at
Exxon Chemical Company and Exxon Research and
Engineering Company jobsites located in Linden and
Florham Park, New Jersey.
2. Laborers International Union of North America,
Local 1030, AFL–CIO is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to enforce Pe-
rimeter Insulation, Inc. to assign the disputed work to
employees represented by it.
3. Within 10 days from this date, Laborers Inter-
national Union of North America, Local 1030, AFL–
CIO shall notify the Regional Director for Region 22
in writing whether it will refrain from forcing Perim-
eter Insulation, Inc., by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.