Laborers Massachusetts District Council, Local 22 (Turner Construction)

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 1077 (N.L.R.B. 1989)

LABORERS MASSACHUSETTS DISTRICT COUNCIL LOCAL 22 (TURNER CONSTRUCTION)
Massachusetts Laborers District Council , Local 22
and Turner Construction Company and Boston
District Council of Carpenters , Local 33
Massachusetts Laborers District Council , Local 151
and Turner Company and Boston District Coun-
cil of Carpenters , Local 40 . Cases 1-CD-
796(1), 1-CD-803(1), and 1-CD-796(2-3)
September 29, 1989
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charges in this Section 10(k) proceeding
were filed March 4 and 15, 1987,1 by Turner Con-
struction Company (Turner), alleging that the Re-
spondents, Massachusetts Laborers District Coun-
cil, Locals 22 and 151, violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging
in proscribed activity with an object of forcing
Turner or its subcontractors to assign certain work
to employees it represents rather than to employees
represented by Boston District Council of Carpen-
ters, Locals 33 and 40. The hearing was held June
8, 1988 , before Hearing Officer Ronald S . Cohen.
The National Relations Board has delegated its
authority in this proceeding to a three -member
panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record , the Board makes the following find-
ings.
1. JURISDICTION
Turner, a New York corporation with an office
and place of business in Boston , Massachusetts, is
engaged in the construction industry as a general
contractor in Massachusetts, where it annually pur-
chases and receives goods and supplies valued in
excess of $50,000 directly from points located out-
side the Commonwealth of Massachusetts . The par-
ties stipulate, and we find, that Turner is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that Massachusetts Laborers
District Council, Locals 22 and 151, and Boston
District Council of Carpenters, Locals 33 and 40
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
' All dates refer to 1987 unless specified otherwise
II. THE DISPUTE
1077
A. Background and Facts of Dispute
Turner is the general contractor at four con-
struction jobsites in the greater Boston , Massachu-
setts area : Heritage on the Common , the jobsite in-
volved in Case 1-CD-796(1); Cambridge Center
Three, the jobsite involved in Case 1-CD-796(2);
Cambridge Center One, the jobsite involved in
Case 1-CD-796(3); and Tent City, the jobsite in-
volved in Case 1-CD-803(1). Turner, as a member
of the Associated General Contractors of Massa-
chusetts (AGC), is a party to an area collective-
bargaining agreement with various Carpenter
Locals, including Boston District Council of Car-
penters, Locals 33 and 40 (Carpenters Local 33 and
Local 40). As a member of AGC, Turner is also a
party to an area collective-bargaining agreement
with various Laborers Locals, including Massachu-
setts Laborers District Council, Locals 22 and 151
(Laborers Local 22 and Local 151).
Under the provisions of Turner's contracts with
Carpenters Locals 33 and 40, Turner is prohibited
from subcontracting any work covered by the con-
tract to be performed on the jobsite to contractors
who are not party to a collective -bargaining agree-
ment with the Carpenters.2 At each of the jobsites
described above, Turner subcontracted out the
work of the erection and dismantling of the pipe
scaffolding for masonry work to contractors who
were not parties to any contracts with Carpenters
Locals 33 or 40. These contractors, D. J. Con-
struction Company (D. J. Construction) at the
Cambridge Center Three jobsite and Anastasi
Brothers Corporation (Anastasi) at the other three
jobsites, assigned the erection and dismantling of
the pipe scaffolding work to employees who were
represented by either Laborers Local 22 or Local
151 pursuant to collective -bargaining agreements
which D. J. Construction and Anastasi had with
these Laborers Locals.
With regard to all four jobsites, after Turner sub-
contracted the work to contractors who did not
have collective-bargaining agreements with the
Carpenters, Turner was notified by Carpenters'
representatives that the Carpenters believed that
Turner had violated the contract and that if the
work in question were not reassigned to the Car-
penters , the Carpenters would pursue a contractual
grievance and seek monetary damages against
Turner. In response to the Carpenters' claims,
Turner contacted the Laborers to discuss the Car-
2 The contracts specifically refer to the building, erection, and disman-
tling of all scaffolding and staging for all trades as work within the juris-
diction of Locals 33 and 40.
296 NLRB No. 137
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
penters '. position . In each case the Laborers re-
sponded that they would strike the jobsite if the
work was reassigned to the Carpenters.3
B. Work in Dispute
The disputed work involves the erection , instal-
lation , and dismantling of pipe scaffolding at the
Heritage on the Common and Tent City jobsites in
Boston , Massachusetts , and the same work at the
Cambridge Center One and Cambridge Center
Three jobsites in Cambridge , Massachusetts.
C. Contentions of the Parties
Turner contends that the disputed work should
be awarded to employees represented by Laborers
Locals 22 and 151 based on the Board 's award of
similar work in Laborers (O'Connell 's Sons), 288
NLRB 53 ( 1988). Carpenters Locals 33 and 40
argue there is no reasonable cause to believe Sec-
tion 8(b)(4)(D) of the Act has been violated be-
cause the threats made by Laborers Locals 22 and
151 were not genuine . Carpenters Locals 33 and 40
further contend that their contractual grievance is
'i According to the testimony of Donald Denman , project executive for
Turner , at the Tent City project Turner subcontracted the pipe scaffold-
ing work to Anastasi , who assigned the pipe scaffolding work in question
to employees represented by Laborers Local 22 Subsequently , Denman
was contacted by Ed Thompson, business representative for Carpenters
Local 33 , who informed Denman that the Carpenters thought Turner
was in violation of the contract At a meeting to discuss the situation,
Thompson stated that the Carpenters were going to get money damages,
a comment Denman understood to mean that the Carpenters were going
to pursue a contractual grievance As a result of the meeting , Denman
called Louis Mandarin, , business agent for Laborers Local 22 , and told
him that the Carpenters were claiming the work in question Mandanm
replied that if Turner reassigned the work the Laborers would strike the
job
At the Cambridge Center One jobsite , Turner subcontracted the work
in question to Anastasi , who in turn assigned the work to employees rep-
resented by Laborers Local 151 Bob Bryant , business agent for Carpen-
ters Local 40, informed Turner that the Carpenters felt Turner was in
violation of the contract Subsequently , the Carpenters filed a grievance
against Turner seeking monetary damages After Denman learned of the
Carpenters ' position , he talked with Charlie Bonfigho , business agent for
Laborers Local 151 , who informed him that if the work was reassigned
he would pull the Laborers off the job
On the Cambridge Center Three jobsite, Turner subcontracted the
work in question to D J Construction , who assigned the work to em-
ployees represented by Laborers Local 151 The Carpenters , through
Andy Silins , an official of the Boston District Council of Carpenters, in-
formed Turner that they believed Turner was in violation of the contract
Again the Carpenters filed a contractual grievance seeking monetary
damages against Turner Denman discussed the situation with Bonfigho
(the same conversation in which Cambridge Center one was discussed),
who said he would pull all the Laborers off the job
At the Heritage on the Common jobsite , Turner subcontracted the
work in question to Anastasi , who assigned the work to employees repre-
sented by Laborers Local 22 Denman received a phone call from Bob
Marshall , a business representative for Carpenters Local 33, who stated
that Turner was in violation of the contract Again the Carpenters filed a
grievance seeking monetary damages against Turner After learning of
the Carpenters ' claim, Denman contacted Mandarin ,, who told him that if
the work was reassigned he would pull the Laborers off the job
The grievances concerning all four jobsites were consolidated for arbi-
tration purposes and were pending at the time of the instant hearing At
the time of the hearing , the work in question was essentially completed at
all four sites.
not a claim for the work and therefore there are no
competing claims to the work in this case . Carpen-
ters Locals 33 and 40 also claim that Turner cannot
invoke Section 10(k) of the Act because , having
breached its contract with the Carpenters Locals, it
is not an innocent employer caught between two
rival unions .4 Carpenters Locals 33 and 40 stipulat-
ed, based on prior determinations of disputes, that
in the event the Board finds the dispute cognizable,
the work will be awarded to employees represent-
ed by Laborers Locals 22 and 151.
D. Applicability of the Statute
In a 10(k) proceeding , the Board must determine
whether there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred, i.e.,
that there are competing claims to disputed work
between rival groups of employees and that there
is reasonable cause to believe that at least one party
has used proscribed means to enforce its claim.
As set forth above , in response to information
that Carpenters Locals 33 and 40 claimed that the
scaffolding work was subcontracted in violation of
their contract , Laborers Locals 22 and 151 threat-
ened to strike Turner's jobsites . There is no record
evidence supporting the claim of Carpenters Locals
33 and 40 that the threats were collusive and not
genuine . Consequently , there is reasonable cause to
believe that the Laborers used means proscribed by
Section 8 (b)(4)(ii)(D) to enforce their claim to the
work.
Furthermore , we find that there are competing
claims to the disputed work . In O'Connell 's Sons,
above , the Board held that when two different
unions have collective -bargaining agreements with
an employer arguably covering the work in dispute
and one of those unions opts to pursue the work
through a contractual grievance , that grievance
will be considered a claim to the work for purposes
of determining the existence of jurisdiction under
Section 10(k).5 Here , two unions have collective-
4 The Carpenters further contend that the charge involving the Tent
City jobsite is barred by Sec 10(b) of the Act. Assuming arguendo that
an Intervenor may assert a 10(b) defense in a 10 (k) proceeding, we find
no merit in the Carpenters ' position as we find that the 10 (b) defense was
not timely raised The Board has held that a 10(b) defense initially raised
in a posthearing brief is untimely raised and prejudices the General Coun-
sel. Taft Broadcasting Co., 264 NLRB 185, 190 ( 1982). Similarly here, the
Carpenters did not raise the issue until they filed their brief to the Board.
As the matter was never raised at the hearing, we find the claim not
properly before us
Turner filed a motion to strike the 10(b) defense and requested leave to
submit a reply brief. Turner's motion to strike the 10(b) defense is grant-
ed as we find that the 10(b) defense was not timely raised Turner's re-
quest for leave to file a reply brief is denied.
S See also Iron Workers Local 433 (Crescent Corp.), 277 NLRB 670, 673
(1985), Sheet Metal Workers Local 107 (Lathrop Ca), 276 NLRB 1200,
1202 (1985), Electrical Workers IBEW Local 104 (Standard Sign), 248
NLRB 1144, 1145 (1980).
LABORERS MASSACHUSETTS DISTRICT COUNCIL LOCAL 22 (TURNER CONSTRUCTION) 1079
bargaining agreements with Turner . Relying on
their contract, Laborers Locals 22 and 151 claim
the scaffolding work for the employees they repre-
sent . The grievances of Carpenters Locals 33 and
40 also assert that the Carpenters ' contract covers
the work. Consequently, we conclude that there
are competing claims to disputed work between
rival groups of employees.
We find reasonable cause , therefore , to believe
that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed method for volun-
tary 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 af-
firmative 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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
Because Carpenters Locals 33 and 40 conceded
that if the dispute is properly before the Board, the
work would be awarded to employees represented
by Laborers Locals 22 and 151, Carpenters Locals
33 and 40 did not present any evidence at the hear-
ing regarding the merits of the dispute . The parties,
by stipulation, incorporated portions of the record
in Laborers Local 223 (Anastasi Bros.), 272 NLRB
860 (1984), into the record of the p- sent case.6
The following factors are relevant in making the
determination of the dispute.
1. Certifications and collective-bargaining
agreements
No party claims there are certifications applica-
ble to the work in dispute.
Laborers Locals 22 and 151 's agreements with
the AGC, to which the general contractor, Turner,
and the subcontractors , Anastasi and D . J. Con-
struction , are signatory, specifically refer to the
work in dispute as laborers' work.
Carpenters Locals 33 and 40 's agreements with
the AGC, to which Turner, but not Anastasi and
D. J. Construction, is signatory , refer to the disput-
ed work as carpenters ' work . The Carpenters' con-
6 The collective -bargaining agreements of these Unions were involved
in a factually similar dispute in Anastasi Bros, supra In that case, the
Board awarded the disputed work to employees represented by Laborers
Local 223.
tract, however, also expressly provides that the
contractor or subcontractor with the final contract
to do the work shall be the entity to make the
work assignment . In this case , Anastasi and D. J.
Construction have the final contract to perform the
scaffolding work and are responsible for the work
assignment . Neither Anastasi nor D . J. Construc-
tion is signatory to the contract with the Carpen-
ters and therefore are under no obligation to award
the disputed work to employees represented by
Carpenters Locals 33 and 40.
Because Laborers Locals 22 and 151 have collec-
tive-bargaining agreements with Anastasi and D. J.
Construction covering the disputed work and be-
cause Carpenters Locals 33 and 40 do not have
such contracts with Anastasi and D. J. Construc-
tion , we find that this factor favors an award of the
disputed work to employees represented by Labor-
ers Locals 22 and 151.
2. Company preference and past practice
Both Anastasi and D. J. Construction have in the
past assigned scaffolding work to employees repre-
sented by the Laborers and that practice has con-
tinued up to the present. Neither Anastasi nor
D. J. Construction has ever assigned the scaffold-
ing work to employees represented by a Carpenters
union . Accordingly , this factor favors an award to
employees represented by Laborers Locals 22 and
151.
3. Area practice
Testimony presented at the hearing in Anastasi
Bros., supra, and incorporated into the record in
this case, shows that it is standard practice for la-
borers to erect and dismantle pipe scaffolding in
the Boston area . Accordingly, this factor favors an
award of the disputed work to employees repre-
sented by Laborers Locals 22 and 151.
4. Relative skills and safety
The record reveals that the disputed work is per-
formed at levels high above the ground. If the
work is not properly performed, the employees
performing the work and other employees working
beneath the scaffolding could be endangered. The
laborers hired by Anastasi and D. J. Construction
have been trained to perform scaffolding work and
have experience performing the disputed work.
The record contains no evidence concerning the
Carpenters' members' skills and experience to per-
form the disputed work safely. Accordingly, this
factor favors an award of the disputed work to em-
ployees represented by Laborers Locals 22 and
151.
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Economy and efficiency of operations
The laborers who were assigned the scaffolding
work perform other tasks for Anastasi and D. J.
Construction . The laborers unload and deliver to
the appropriate spot various masonry materials and
supplies, mix mortar and bring it, together with
brick supplies , to the brick masons , and perform
cleanup details . If the disputed work were assigned
to carpenters , they would have no duties beyond
the construction of the scaffolding. Thus, Anastasi
and D . J. Construction would need to hire two
crews to do the work now done with one Labor-
ers' crew . Accordingly, economy and efficiency of
operation favors awarding the disputed work to
employees represented by Laborers Locals 22 and
151.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
Locals 22 and 151 are entitled to perform the work
in dispute . We reach this conclusion relying on the
factors of collective-bargaining agreements, em-
ployer preference and past practice , area practice,
relative skills and safety , and economy and efficien-
cy of operations.
In making this determination , we are awarding
the work to employees represented by Laborers
Locals 22 and 151, not to those Unions or their
members . The determination is limited to the con-
troversy that gave rise to this proceeding.
Scope of the Award
Turner has requested a broad work award cover-
ing the entire geographic area encompassed by the
Boston District Council of Carpenters ' agreement
with Turner . We find such an award inappropriate.
Here , the labor organizations-Laborers Locals 22
and 151-which engaged in acts of 8(b)(4)(ii)(D)
coercion in order to keep disputed work , are the
organizations that represent the employees to
whom we are awarding the work and to whom the
Employers contemplate continuing to assign the
work. Carpenters Locals 33 and 40 have not en-
gaged in any acts of coercion , nor have they indi-
cated any likelihood of doing so. In circumstances
such as these , the Board has declined to give an
areawide award . Iron Workers Local 433 (Crescent
Corp.), 277 NLRB 670, 675 (1985); Electrical Work-
ers IBEW Local 104 (Standard Sign), 248 NLRB
1144, 1147-1148 (1980).7 Accordingly, the award is
limited to the four jobsites for which there was evi-
dence of competing claims for work.8
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Anastasi Brothers Corporation and
D. J. Construction represented by the Massachu-
setts Laborers District Council , Locals 22 and 151
are entitled to perform the erection , installation,
and dismantling of pipe scaffolding at the Heritage
on the Common, Cambridge Center Three, Cam-
bridge Center One, and Tent City jobsites.
' Additionally , the award in O'Connell's Sons, supra , on which Turner
relies, was limited to a particular project.
8 Chairman Stephens notes that in Carpenters Local 33 (Blount Bros),
289 NLRB 1482 ( 1988), the Board held that a union 's enforcement
against a general contractor of a lawful union signatory construction in-
dustry subcontracting clause does not constitute unlawful coercion even
when the general contractor is sued for contracting out work to a sub-
contractor whose own assignment of the work to employees of a differ-
ent union has been upheld in a 10(k) award by the Board The Board's
award protected the subcontracting employer responsible for assigning
the work from future unlawful pressure to assign it to others , but did not
permit the award to be used as a means of immunizing a general contrac-
tor against suits for its breaches of a lawful contract clause . By contrast,
in cases arising outside the construction industry , in which the construc-
tion industry proviso to Sec. 8 (e) does not privilege such subcontracting
clauses, suits against an employer aimed at seeking work in contravention
of a 10(k) award can have no reasonable basis or proper motivation, and
therefore may constitute coercion within the meaning of Sec
8(b)(4)(ii)(D) See Longshoremen ILWU Local 7 (Georgia-Pacific), 291
NLRB 89 ( 1988).