Laborers Local 1030 (R.A.K.CO.)

National Labor Relations Board - Board Decisions

Jun 30, 1994

314 N.L.R.B. 225 (N.L.R.B. 1994)

225
314 NLRB No. 42
LABORERS LOCAL 1030 (R.A.K.CO.)
1 All dates hereafter refer to 1993.
Local 1030, Laborers International Union of North
America, AFL–CIO and Hazardous Material
Workers Union (R.A.K.CO., Inc., a wholly
owned subsidiary of Robert A. Keasbey Co.,
Inc.). Case 22–CD–650
June 30, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The charge in this Section 10(k) proceeding was
filed on October 6, 1993, by Hazardous Material
Workers Union (HMWU), alleging that the Respond-
ent, Laborers Local 1030, violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging in
proscribed activity with an object of forcing the Em-
ployer, R.A.K.CO., Inc., a wholly owned subsidiary of
Robert A. Keasbey Co., Inc., to assign certain work to
employees it represents rather than to employees rep-
resented by HMWU. The hearing was held on October
28, 1993, before Hearing Officer Collette Sarro.
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
R.A.K.CO., Inc., a New Jersey corporation, with an
office and place of business in Hoboken, New Jersey,
is engaged in thermal insulation, reinsulation, asbestos
abatement, and lead abatement. R.A.K.CO., Inc. is a
wholly owned subsidiary of Robert A. Keasbey Co.,
Inc., which has an office and place of business in
Newark, New Jersey. During the 12 months preceding
the hearing, R.A.K.CO., Inc. and Robert A. Keasbey
Co., Inc. derived gross revenue in excess of $50,000
from the performance of services for customers located
directly outside the State of New Jersey and purchased
goods in excess of $5000 directly from points outside
the State of New Jersey. We find that the Employer
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that HMWU and the La-
borers are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In June 1993,1 the Employer entered into a collec-
tive-bargaining agreement with HMWU, covering as-
bestos abatement employees. In September, the Em-
ployer received a subcontract to remove asbestos from
the subbasements of three terminals at Newark Inter-
national Airport in Newark, New Jersey. The Em-
ployer assigned the work to employees represented by
HMWU.
On about September 27, the Laborers’ business
manager, Joseph Scifilliti, met with the Employer’s
president, Stephen Mandarano. Scifilliti demanded that
all the asbestos removal work be assigned to employ-
ees represented by the Laborers. Mandarano refused,
based on the Employer’s collective-bargaining agree-
ment with HMWU. Subsequently, the Laborers pick-
eted the jobsite for at least 2 days. Scifilliti testified
that one of the purposes of the picket line was to per-
suade the Employer to use employees represented by
the Laborers.
B. Work in Dispute
The disputed work involves the removal of asbestos
from the subbasement of terminals A, B, and C at
Newark International Airport in Newark, New Jersey.
C. Applicability of the Statute
As described above, the record indicates that the La-
borers demanded reassignment of the disputed work to
employees represented by the Laborers. The Laborers
picketed the Newark airport in furtherance of this de-
mand. The parties stipulated that there is no voluntary
method of resolving the jurisdictional dispute which
would be binding on all the parties.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly be-
fore the Board for determination.
D. 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 this dispute.
1. Collective-bargaining agreements
On June 28, the Employer entered into a 1-year col-
lective-bargaining agreement with HMWU. The con-
tract specifically covers nonsupervisory asbestos abate-
ment employees engaged in asbestos and lead abate-
ment. The Employer does not have a collective-bar-
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining agreement with the Laborers. We find that this
factor favors an award of the work in dispute to em-
ployees represented by HMWU.
2. Employer preference and past practice
The Employer, in accordance with its preference, as-
signed the work in dispute to employees represented
by HMWU. There is no evidence to indicate whether
the Employer has in the past assigned the disputed
work to employees represented by HMWU or the La-
borers. We find that the Employer’s preference favors
awarding the work in dispute to employees represented
by HMWU, but that past practice does not favor
awarding the disputed work to either group of employ-
ees.
3. Area and industry practice
Employees represented by HMWU have performed
similar asbestos removal and abatement in other area
locations, including Kennedy International Airport and
Grand Central Station in New York. The Laborers’
business manager testified that his local represented
only employees engaged in asbestos removal and
abatement work. The Laborers has entered into collec-
tive-bargaining agreements with numerous employers
covering laborers engaged in such work within the
State of New Jersey. We find that this factor does not
favor awarding the disputed work to employees rep-
resented either by the HMWU or the Laborers.
4. Relative skills
All employees are required by the State of New Jer-
sey to obtain a license before they can work on an as-
bestos removal job. The licenses are issued to employ-
ees only after they have completed the required state
schooling and testing procedures. Both HMWU- and
the Laborers-represented employees possess the nec-
essary licenses. Accordingly, it appears that the em-
ployees represented by each Union are sufficiently
skilled to satisfactorily perform the disputed work.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by HMWU are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the Employer’s collective-bargaining
agreement and the Employer’s preference. In making
this determination, we are awarding the work to em-
ployees represented by HMWU, not to that Union or
its members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of R.A.K.CO., Inc., a wholly owned
subsidiary of Robert A. Keasbey Co., Inc., represented
by Hazardous Material Workers Union are entitled to
perform the removal of asbestos from the subbasement
of terminals A, B, and C of Newark International Air-
port.
2. Local 1030, Laborers International Union of
North America, AFL–CIO is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
R.A.K.CO., Inc., a wholly owned subsidiary of Robert
A. Keasbey Co., Inc. to assign the disputed work to
employees represented by it.
3. Within 10 days from this date, Local 1030, La-
borers International Union of North America, AFL–
CIO shall notify the Regional Director for Region 22
in writing whether it will refrain from forcing the Em-
ployer, by means proscribed by Section 8(b)(4)(D), to
assign the disputed work in a manner inconsistent with
this determination.