Laborers Massachusetts District Council (John McCourt Co.)

National Labor Relations Board - Board Decisions

Dec 31, 1992

309 N.L.R.B. 1460 (N.L.R.B. 1992)

1460
309 NLRB No. 189
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 8, 1992, a notice of voluntary settlement of the
jurisdictional dispute in Case 1–CD–915 was jointly filed with the
Board by the Employer, the Laborers, and Iron Workers Local 7,
International Association of Bridge, Structural and Ornamental Iron
Workers, AFL–CIO (Iron Workers). (Local 103 is not directly in-
volved in Case 1–CD–915, but it was served with a copy of this no-
tice.) The parties stated in their Notice that they had voluntarily re-
solved their dispute regarding the assignment of the work in dispute
in Case 1–CD–915, and requested that the Board not make an award
of the work in dispute in that case. The parties’ request is unop-
posed. It is granted, no award is made here of the work in dispute
in Case 1–CD–915, and the notice of hearing in that case is quashed. 2 All dates are 1992 unless otherwise stated.
Massachusetts Laborers’ District Council, Labor-
ers’ International Union of North America,
AFL–CIO and John McCourt Company
International Brotherhood of Electrical Workers,
Local 103, AFL–CIO and John McCourt Com-
pany. Cases 1–CD–914, 1–CD–915, and 1–CD–
916
December 31, 1992
DECISION, DETERMINATION OF DISPUTE,
AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charges in this Section 10(k) proceeding were
filed July 1, 1992, by the Employer, alleging that Re-
spondent Massachusetts Laborers’ District Council, La-
borers’ International Union of North America, AFL–
CIO (Laborers) in Cases 1–CD–914 and 1–CD–915,
and Respondent International Brotherhood of Electrical
Workers, Local 103, AFL–CIO (Local 103) in Case 1–
CD–916, violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign cer-
tain work to employees they represent rather than to
employees represented by the other Respondent. The
hearing was held August 5, 1992, before Hearing Offi-
cer Gerald Wolper.1
The National Relations Board has delegated its au-
thority 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, John McCourt Company, is a Massa-
chusetts corporation engaged as a heavy and highway
contractor in the construction industry. It annually re-
ceives goods and materials valued in excess of $50,000
directly from points located outside the Common-
wealth of Massachusetts. The parties stipulated, and
we find, that the Employer is engaged in commerce
within the meaning of the Act, and that the Laborers
and Local 103 are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Massachusetts Bay Transportation Authority
(MBTA) was engaged in a construction project at its
Cabot Yard location in South Boston. The general con-
tractor was H. J. Stabile Company, which subcon-
tracted with the Employer to install underground (i.e.,
subsurface) ducts (also known as and referred to inter-
changeably herein as a conduits) for electrical wiring.
The ducts are epoxy-coated, reinforced, 5-inch-diame-
ter pipes of varying lengths. They are installed in
banks, which in this case are a series of nine ducts, ar-
ranged in three layered rows of three, one row on top
of another, and which are held in place and separated
from each other by spacers: flat, 9-holed plates through
which the ducts pass.
The subsurface installation of the ducts requires the
surface excavation of a trench, jackhammering of ex-
isting pavement where necessary, removal of the exca-
vated material, preparation of the trench surface, place-
ment of the spacers, insertion of the ducts through the
spacers to create the duct bank, placement of the duct
bank in the trench, placement of a reinforced steel
cage around the duct bank, pouring concrete to encase
the duct bank, backfilling the excavation, and repaving
the surface where necessary.
The Employer assigned the operation of heavy
equipment associated with these tasks to its employees
represented by the Operating Engineers (not a party to
or otherwise involved in this proceeding), and assigned
the remainder of the work associated with these tasks
to its employees represented by the Laborers.
Steven Frick, vice president of operations for the
Employer, testified that about 8 a.m. on June 30,
1992,2 he received a telephone call from Robert
Fagone, MBTA project manager for the instant Cabot
Yard project. According to Frick, Fagone told him that
he had a call from the ‘‘electricians’’ and was told that
there would be a picket line and a ‘‘disruption’’ if the
work of installing the duct bank was not assigned to
the ‘‘electricians.’’ Fagone called an emergency meet-
ing for 11 o’clock that morning at his office with the
parties to discuss the matter.
After Frick spoke with Fagone, Frick called the La-
borers’ office and spoke with Joseph Pavone, Labor-
ers’ field representative. Frick told Pavone that the
MBTA was concerned that the ‘‘electricians’’ had de-
manded the duct installation work. Pavone told Frick
that the Employer had properly assigned the work to
the Laborers, and that if the Employer tried to reassign
it, the Employer would ‘‘have a strike on [its] hands.’’
A meeting was held in Fagone’s office later that
day, June 30, attended by, inter alia, Fagone, Frick,
1461LABORERS MASSACHUSETTS DISTRICT COUNCIL (JOHN MCCOURT CO.)
3 Although the Laborers had been notified of this meeting, it did
not send a representative.
4 Frick was the only witness called by the Employer. All evidence
cited here relating to the above June 30 telephone discussions and
to the discussions at the June 30 and July 2 meetings described infra
comes from Frick’s testimony.
5 The Employer also contends that reasonable cause exists to be-
lieve that Local 103 violated Sec. 8(b)(4)(D) when its business
agent, Monahan, did not assure MBTA Project Manager Fagone that
there would be no disruption in service. Because we find infra that
Pavone’s threat to Frick establishes reasonable cause to believe that
Sec. 8(b)(4)(D) has been violated, we find it unnecessary to pass on
the Employer’s additional contention that Monahan’s failure to as-
sure Fagone that there would be no disruptions also constitutes rea-
sonable cause to believe that Sec. 8(b)(4)(D) has been violated.
Employer Attorney Richard Wayne, and Local 103
Business Agent Charles Monahan.3 According to
Frick,4 Fagone stated that there was a problem: that
the ‘‘electricians’’ had expressed concern to him as to
who was installing the duct bank; that he was not
going to allow any disruption in service; and that he
wanted the matter resolved immediately. Wayne asked
Monahan what work Local 103 was claiming.
Monahan said the handling and placing of the duct
work in its entirety from unloading the materials from
the truck to the backfilling of the trench after emplace-
ment of the duct banks. Wayne asked Monahan why
he thought that Local 103 was entitled to perform that
work, because the work was expressly covered in the
Employer’s collective-bargaining agreement with the
Laborers. Monahan said that because the work was
being performed on private property, it belonged to
Local 103. Wayne stated that the Employer had as-
signed the work in question to the Laborers and that
the Employer did not understand what the problem
was. Fagone stated that there was a problem, that the
MBTA had been threatened with a strike, and that he
would not tolerate any disruption of transportation
service. He told the attendees to resolve the problem—
‘‘Make it go away.’’ He told them that he could not
permit the duct installation work to continue because
he feared a strike. Monahan denied threatening a
strike, but requested that the duct installation work be
turned over to Local 103, as ‘‘the proper licensed per-
son in the Commonwealth to install the electrical duct
bank.’’ Fagone asked if there would be a disruption in
service, or if the duct installation could continue.
Monahan did not provide an assurance that there
would not be a disruption of work, and Fagone then
told the attendees, ‘‘[T]hat’s it. No more work on the
job. Stop work immediately. Until this is resolved, I
will not tolerate a disruption of service.’’ Fagone, how-
ever, rescinded his stop-work order later that day, and
instructed the Employer to continue working until fur-
ther notice.
On July 2, another meeting was held, this one at the
office of John Aylward, MBTA labor relations man-
ager. In attendance at this meeting were, inter alia,
Aylward, Fagone, Frick, and Wayne, but no one from
either the Laborers or Local 103. Aylward asked for
a compromise. But because neither representatives of
the Laborers nor of Local 103 were present at this
meeting, no progress was made towards a compromise.
Aylward said that he would contact Local 103 to as-
certain its position, but that in the meantime, and until
further notice, the Employer was to stop the installa-
tion of the ducts on the project.
The Employer’s employees stopped work pursuant
to these instructions on July 2 and, as of the August
5 date of the hearing, had not performed any further
duct-installation work on the project.
B. Work in Dispute
This disputed work involves the installation of ducts
at the MBTA’s Cabot Yard, South Boston, Massachu-
setts location.
C. Contentions of the Parties
The Employer contends, inter alia, that reasonable
cause exists to believe that the Laborers violated Sec-
tion 8(b)(4)(D) of the Act when its field representative,
Pavone, threatened the Employer’s vice president,
Frick, that the Employer would ‘‘have a strike on [its]
hands’’ if it tried to reassign the work in dispute from
the Employer’s employees represented by the Labor-
ers.5 The Employer further contends that the work in
dispute should be awarded to its employees represented
by the Laborers on the basis of the Employer’s collec-
tive-bargaining agreement with the Laborers, the Em-
ployer’s preference and past practice, area and industry
practice, relative skills, and economy and efficiency of
operation.
Local 103 maintains that it ‘‘never made any de-
mand from McCourt to assign the work to Local 103-
represented employees . . . but only requested that the
MBTA assign the installation of conduits as it has his-
torically done; to the electricans.’’ Local 103 further
contends that the work in dispute should be awarded
to employees it represents, on the basis of collective-
bargaining agreements it has with other employers.
Local 103 asserts that these agreements cover employ-
ees classified as journeymen and apprentice elec-
tricians, who regularly perform work like that in dis-
pute. Local 103 also contends that the work in dispute
should be awarded to employees it represents on the
basis that it is on an MBTA project, and that on such
projects MBTA itself usually either assigns the work
in dispute to electrical contractors who have collective-
bargaining agreements with Local 103 or, less fre-
quently, when MBTA chooses to perform work in-
house rather than subcontract it, it assigns such work
to its own wiremen employees who are represented by
Local 103.
1462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 J. F. White Co. is not a party to the instant proceeding, and the
Employer here, McCourt, was not a party to the 1988 state proceed-
ing. Bonanno did not testify in the instant proceeding.
Local 103 also relies on the testimony of Philip
Bonanno, president of J. F. White Construction Com-
pany (not involved in the instant case) in a June 1988
hearing before the Massachusetts Board of State Exam-
iners of Electricians (discussed below).6
Local 103 further contends that, unlike for the La-
borers, there is record evidence (the testimony of Local
103 Business Agent Donn Berry) that both apprentice
and journeymen electricians are given formal training
in the installation and bending of conduits.
The Laborers did not file a brief or statement of po-
sition with the Board. Although it was represented at
the hearing by its business manager, Paul McNally, he
made neither an opening nor closing statement, and he
participated only briefly in the presentation of evi-
dence.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k), it must be sat-
isfied that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated and that the parties
have not agreed on a method for voluntary adjustment
of the dispute.
The Employer’s vice president Frick testified that at
the June 30 meeting in the office of MBTA Project
Manager Fagone, IBEW Local 103 Business Agent
Monahan said that Local 103 was claiming the han-
dling and placing of all the duct work on MBTA prop-
erty. Frick also testified that Laborers’ field representa-
tive, Pavone, had earlier threatened Frick that the Em-
ployer would ‘‘have a strike on [its] hands’’ if the Em-
ployer tried to reassign the work in dispute from the
Employer’s employees represented by the Laborers.
There is no assertion, and no evidence, that an
agreed-upon method exists for the voluntary adjust-
ment of the instant dispute.
We find reasonable cause to believe that 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 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 Local 103 or the
Laborers are certified to represent any of the Employ-
er’s employees. Accordingly, the factor of certifi-
cations is not helpful to a determination of the dispute.
The Employer has never had a collective-bargaining
agreement with Local 103, or with its parent, Inter-
national Brotherhood of Electrical Workers, AFL–CIO
(IBEW). The Employer has, however, had successive
collective-bargaining agreements with the Laborers for
over 30 years, and is currently a signatory to the June
1, 1991–May 31, 1994 collective-bargaining agreement
between the Laborers and the Labor Relations Division
of the Construction Industries of Massachusetts, Inc.,
of which the Employer is a member. Article VIII, sec-
tions 1 and 2, of this collective-bargaining agreement
makes it applicable to ‘‘laying conduits and ducts’’
and ‘‘construction . . . of . . . duct lines.’’ Also, arti-
cle XXIII and Appendix A of the contract make it ap-
plicable to the ‘‘digging of trenches . . . prior to lay-
ing pipe or conduit for any purpose.’’ Accordingly, we
find that the factor of collective-bargaining agreements
favors an award of the work in dispute to the Employ-
er’s employees represented by the Laborers.
2. Employer preference and past practice
Frick testified with specificity that on all employer
projects as far back as 1981 involving the type of work
that is in dispute here, the Employer consistently as-
signed such work to its employees represented by the
Laborers, and never assigned such work to employees
represented by Local 103 or the IBEW.
We find that this factor favors an award of the work
in dispute to the Employer’s employees represented by
the Laborers.
3. Area and industry practice
Frick testified that the Construction Industries of
Massachusetts, Inc., of which the Employer is a mem-
ber, is a statewide employer association that represents
employers engaged in heavy and highway construction.
Frick testified that he knows that the other members of
the association assign the type of work in dispute here
to members of the Laborers, and that it is the practice
of the approximately 24 signatories to the above-men-
tioned 1991–1994 collective-bargaining agreement to
assign such work to their employees represented by the
Laborers.
Local 103 Business Agent Donn Berry also testified
that Local 103 represents the employees of ‘‘some-
1463LABORERS MASSACHUSETTS DISTRICT COUNCIL (JOHN MCCOURT CO.)
7 Berry testified that he knew that three of these electrical contrac-
tors did not have collective-bargaining agreements with the Laborers,
but that he did not know whether three others did. He was not asked
about the remaining two.
thing under 200’’ electrical contractors in eastern Mas-
sachusetts, all of whom are signatory to Local 103’s
September 1, 1991–August 31, 1993 collective-bar-
gaining agreement with the Electrical Contractors As-
sociation of Greater Boston, Inc., Boston Chapter, Na-
tional Electrical Contractors Association (Boston
NECA). According to Berry, work like the work in
dispute is consistently assigned, pursuant to this collec-
tive-bargaining agreement, to employees represented
by Local 103. More specifically, Berry testified that
when the type of work in dispute here is performed by
electrical contractors on MBTA property, it has ‘‘typi-
cally and historically’’ been performed by employees
represented by Local 103. Berry named eight particular
electrical contractors as examples of contractors who
are signatory to the Local 103-Boston NECA collec-
tive-bargaining agreement and who have assigned such
work to employees represented by Local 103.7
Local 103 Business Agent Charles Monahan testi-
fied Local 103 represents MBTA’s electricians, re-
ferred to as wiremen, and that these MBTA wiremen
sometimes install conduit on MBTA premises.
Monahan further testified that MBTA also employs
‘‘laborers,’’ but that to the best of his knowledge these
laborers do not install conduit on the MBTA ‘‘sys-
tem.’’ Finally, Monahan testified that since August
1990 there have been ‘‘many’’ projects involving the
installation of conduits on MBTA premises. He named
three such projects, including the overall H. J. Stabile
Cabot Yard project in the instant case (but not, of
course, the particular duct installation in dispute in this
case). Monahan testified that on all three projects,
Local 103-represented employees of electrical contrac-
tors installed conduits.
We find that the record, as summarized above, does
not establish the existence of a consistent area- or in-
dustry-wide practice of assigning work like that in dis-
pute to either the Laborers or Local 103. Accordingly,
we find that this factor does not favor award of the
work in dispute to employees represented by either the
Laborers or Local 103, and thus this factor is not help-
ful in determining the dispute.
4. Relative skills
Frick testified that the Employer’s employees rep-
resented by the Laborers are ‘‘proficient’’ in perform-
ing the work in dispute. Berry testified that all appren-
tice electricians who go through the formal training es-
tablished by the Joint Apprenticeship and Training
Committee of Local 103 and the Boston NECA are
given training in the installation and bending of con-
duit, and that journeymen electricians are offered
‘‘training courses for updates with respect to the instal-
lation of conduits.’’
The evidence shows that both groups of employees
have the requisite skills to perform the work in dis-
pute. Accordingly, we find that this factor is not help-
ful in determining the dispute.
5. Economy and efficiency of operations
Frick testified that the Employer believes that the
most efficient and economical way to install duct work
is the way the Employer does it, with employees rep-
resented by the Operating Engineers operating the
heavy equipment associated with the installation of
duct banks, and with employees represented by the La-
borers performing the remainder of the tasks associated
with the work in dispute. Frick testified that it would
be inefficient to use electricians in performing the
work in dispute because, according to his understand-
ing, ‘‘they only have one task to do,’’ and could not
be utilized by the Employer for the remainder of a nor-
mal workday.
Local 103 asserts that the testimony of Philip
Bonanno, president of contractor J. F. White Com-
pany, in the above-mentioned 1988 hearing before the
Board of State Examiners of Electricians, aptly de-
scribes the typical manner in which poured-in-place
conduits such as those in the instant case are installed.
Bonanno testified there that (1) operating engineers ex-
cavate the trench with an excavation machine, (2) la-
borers do any shoveling required, actually creating the
trench itself, (3) carpenters set up the form to receive
the concrete, (4) ironworkers put in the steel reinforc-
ing bars, (5) electricians install the fiberglass or PVC
ducts, (6) laborers pour the concrete, and (7) some-
times (but only ‘‘rarely’’) cement finishers ‘‘get in-
volved in finishing.’’ Bonanno testified that when the
installation of ducts is performed in this manner, the
only participation by the electricians is in setting the
ducts themselves, around which the concrete would be
poured.
Local 103 Business Agent Monahan testified that
there was an electrical contractor, Seaver Company,
working on the project in question, that Seaver’s elec-
tricians were on the project site ‘‘at all times,’’ and
that when the operating engineers and laborers had
completed preparation of the trench for the actual in-
stallation of the ducts, it ‘‘would be possible for elec-
tricians to then come over and install the conduits . . .
without breaking the continuity of the job.’’ Based on
this testimony, Local 103 argues in its brief that
An electrician could perform other duties during
the day, and there would be no added costs in
alerting the electricians on the site when the con-
duit was to be installed. Therefore, the job would
be as economic and efficient having trained elec-
tricians install the conduit at the Cabot Yard site.
1464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Presumably, the electricians would perform these
‘‘other duties’’ while employed by another employer
on the project.
The evidence and argument summarized above indi-
cate that employees represented by Local 103 would
actually perform only one task involved in the overall
work in dispute—putting the conduit in place in the
trench, whereas employees represented by the Laborers
would perform all such tasks except the operation of
heavy equipment. Accordingly, we find that the factor
of economy and efficiency of operations favors an
award of the work in dispute to the Employers’ em-
ployees represented by the Laborers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion relying on the collective-bargaining agree-
ment in effect between the Laborers and the Employer,
the Employer’s preference and past practice, and econ-
omy and efficiency of operations.
In making this determination, we are awarding the
work to employees represented by the Laborers, not to
that Union or its members. The determination is lim-
ited to the controversy that gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of John McCourt Company represented
by the Massachusetts Laborers’ District Council, La-
borers’ International Union of North America, AFL–
CIO, are entitled to perform the installation of ducts at
the Massachusetts Bay Transportation Authority’s
Cabot Yard, South Boston, Massachusetts location.
ORDER
The notice of hearing in Case 1–CD–915 is quashed.