Iron Workers Local 197 (Del Guidice Enterprises)

National Labor Relations Board - Board Decisions

Sep 27, 1988

291 N.L.R.B. 1 (N.L.R.B. 1988)

IRON WORKERS LOCAL 197 (DEL GUIDICE ENTERPRISES) 1
United Derrickmen & Riggers Association, Local
No 197 of New York, all Long Island, West
chester and Vicinity, International Association
of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO and Del Guidice Enter
prises, Inc Case 29-CD-359-2
September 27 1988
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed December 28 1987 by the Employer Del
Guidice Enterprises Inc (Del Guidice) alleging
that the Respondent United Derrickmen & Riggers
Association Local No 197 of New York all Long
Island Westchester and Vicinity International As
sociation of Bridge Structural and Ornamental
Iron Workers AFL-CIO (Local 197) 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 certain
work to employees it represents rather than to em
ployees represented by Mason Tenders District
Council of Greater New York L I U N A AFL-
CIO (Mason Tenders) The hearing was held
March 2 and 3 1988 before Hearing Officer Eliza
beth Orfan
The National Labor Relations Board has delegat
ed 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
I JURISDICTION
The Employer a New Jersey corporation main
tains its principal office and place of business at 55
Voorhis Lane Hackensack New Jersey and en
gages in the building and construction industry
doing masonry waterproofing and roofing work at
various construction sites During the past year the
Employer purchased and caused to be transported
to its construction sites located in New Jersey and
New York goods and materials valued in excess of
$50 000 which were transported and delivered to
the sites in interstate commerce directly from vari
ous States of the United States other than the
States of New York and New Jersey The parties
stipulate and we find that the Employer is en
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Local 197 and the
Mason Tenders are labor organizations within the
meaning of Section 2 (5) of the Act i
II THE DISPUTE
A Background and Facts of Dispute
Del Guidice was the subcontractor for exterior
brick and stone work at the Kol Israel Congrega
tion Synagogue site Del Guidice assigned the ma
sonry work (i e the actual laying of the stone) to
the employees represented by the Bricklayers and
assigned the work in dispute (i e the unloading
handling rolling moving and setting of stone-re
ferred to as tending) to the employees represented
by the Mason Tenders Sometime in late June or
early July 1987 2 James Cooper the business agent
for Local 84 (whose members perform masonry
work in tandem with the tending work performed
by members of Local 197) and William Jessup the
business agent for Local 197 went to the Kol Syn
agogue site together There they met Del Guidice s
working foreman for the stone work Bob Kehl
Kehl testified that Cooper in Jessup s presence and
without objection from him told Kehl if you are
union I in going to shut you down Kehl then
called Del Guidice s director of operations Mi
chael lannacone and told him about the threat
Cooper who along with Jessup had accompanied
Kehl to the telephone got on the phone with Ian
nacone and demanded that Locals 84 and 197
members be given the stone work or the job would
be shut down At this point Kehl s testimony re
veals that Jessup shouted his agreement by stating
words to the effect don t waste no time with em
just shut em down lannacone then told Kehl to
hire employees represented by Locals 84 and 197
but instructed him to get a written agreement stat
ing that there were only 2 days of work left on the
project for those employees Cooper signed an
agreement effectively limiting his claim to the
work but Jessup refused to sign the agreement 3
That same day one Local 84 worker and two
Local 197 workers were hired and one Bricklayer
and one Mason Tender were laid off Approximate
ly 2 1/2 days later the Locals 84 and 197 workers
were laid off When the remaining stone work was
started in August Del Guidice again hired employ
ees represented by the Bricklayers and Mason
' The parties also stipulated that Stonesetters Local 84 International
Union of Bricklayers and Allied Craftsmen AFL-CIO (Local 84) and
District Council of New York City and Long Island International Union
of Bricklayers and Allied Craftsmen AFL-CIO (Bricklayers) are labor
organizations within the meaning of the Act
2 The testimony is contradictory regarding the exact date when the
work was assigned All dates refer to 1987 unless otherwise specified
3 Jessup s testimony shows that he went to the jobsite to get other
people off the job and put Local 197 people on it and that at that time he
was claiming all the job s stone work
291 NLRB No 1
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tenders to perform the stone work On August 27
Local 197 served Del Guidice with a notice of in
tention to arbitrate alleging failure to comply with
the collective bargaining agreement between Del
Guidice and Local 197 for the period from January
1 to the time the notice of intention to arbitrate
was filed On December 28 Local 197 s attorney
sent a letter to lannacone detailing the contractual
violation as being Del Guidice s failure to hire four
men for 17 weeks work including but not limited
to setting lintels and other stone work That same
day (December 28) Del Guidice filed its charge al
leging that since about June 29 Local 197 has vio
lated Section 8(b)(4)(D) of the Act
B Work in Dispute
The parties stipulated that the disputed work in
volves the assignment of all unloading handling,
rolling moving and setting of stone at the Kol
Israel Congregation Synagogue project located at
2501 Avenue K Brooklyn New York
C Contentions of the Parties
Local 197 contends that no jurisdictional dispute
exists and that the notice of hearing should be
quashed because there is no reasonable cause to be
lieve Section 8(b)(4)(D) has been violated Local
197 asserts that it has disclaimed any interest in the
work and that the only issue left to be resolved is a
contractual dispute between it and Del Guidice In
the alternative Local 197 claims that the arbitra
tion provision of its collective bargaining agree
ment provides a method for voluntarily adjusting
the dispute Because it contends that there is no ju
risdictional dispute Local 197 offered no evidence
regarding the award of the work
The Employer states that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated based on the threats to shut down the job
It claims in this regard that Local 84 Business
Agent Cooper acted on behalf of Local 197 in
making the threats Further the Employer asserts
that the notice of intent to arbitrate was a continu
ation of the prior unlawful conduct 4 The Employ
er also contends that the alleged disclaimer is in
valid as it was offered only after all the work had
been completed Finally the Employer claims that
its preference past practice and the economy and
efficiency of operation favor awarding the work to
the Mason Tenders
4 Given our finding infra that the alleged threats establish reasonable
cause to believe that an 8(b)(4)(D) violation has occurred we find it un
necessary to decide whether the notice of intention to arbitrate constitut
ed a continuation of the unlawful conduct
D Applicability of the Statute
Before the Board may proceed to a determine
tion of dispute under Section 10(k) of the Act it
must be satisfied there is reasonable cause to be
lieve that Section 8(b)(4)(D) has been violated and
that the parties have not agreed on a method for
the voluntary adjustment of the dispute 5
Regarding Local 197 s assertion that it has dis
claimed the work we find that the disclaimer is in
effective The purported disclaimer was offered at
the start of the hearing in this case after the disput
ed work had been completed Where, as here a
party seeks to disclaim the disputed work when
there is no work left to be disclaimed the Board
views the disclaimer as simply an attempt by the
party to escape the consequences of its improper
actions by avoiding an authoritative decision on
the merits 6
Moreover there are additional reasons in this
case for refusing to find, as we do that the dis
claimer is effective The language of the purported
disclaimer specifically reserved to Local 197 its
contractual rights against Del Guidice Further
aside from the equivocal language of the disclaimer
itself Local 197 s pursuit of relief through arbitra
tion is inconsistent with its contention that it has
disclaimed the work'
With respect to the threats to shut down the job
we find that there is reasonable cause to believe
that Cooper was acting on behalf of both Locals 84
and 197 when he made the threatening statements
In this regard , the record shows that Cooper and
Jessup rode to the Kol site together and that Kehl
testified that Cooper made two threats to shut
down the job (one to Kehl and one to Iannacone) 8
In both instances Jessup was present when Cooper
made the threats and did not disavow it in either
instance 9 Indeed Jessup shouted support for the
threat made by Cooper over the telephone to Ian
nacone by stating immediately after Cooper made
the threat words to the effect don t waste no time
with em just shut em down Coopers threat to
lannacone specifically stated that employees repre
rented by Locals 84 and 197 had to be assigned the
S See Operating Engineers Local 925 (Bradshaw Industrial Coatings) 264
NLRB 962 964 (1982)
6 Electrical Workers IBEW Local 3 (Mike G Electric) 279 NLRB 521
523 (1986)
° Sheet Metal Workers Local 107 (Lathrop Co) 276 NLRB 1200 1202
(1985)
8 Although Jessup and Local 197 member Daniel Gorman (who was at
the Kol site) denied that Cooper had made any threats such conflicts in
testimony do not prevent the Board from proceeding under Sec 10(k) as
we are charged only with determining that reasonable cause exists for
finding a violation of Sec 8(b)(4)(D) of the Act not that a violation actu
ally occurred See Bricklayers Local 44 (Corbetta Construction) 253
NLRB 131 133 (1980)
9 Carpenters Local 102 (Meiswinkel) 260 NLRB 972 974 (1982)
IRON WORKERS LOCAL 197 (DEL GUIDICE ENTERPRISES)
work Moreover in the context here of the team
approach to stone work taken by Locals 84 and
197 (1 e , each union works only witli members of
the other union on stone work) and the two locals
joint pursuit of that work we find that when one
of the two business agents (in this case Cooper)
spoke in furtherance of their common objective he
spoke for both of them and their respective locals
Local 197 also argues that the Board should look
to the real nature of a dispute and that such an in
query here reveals that this is really a contractual
not a jurisdictional, dispute In support of this argu
ment Local 197 cites Teamsters Local 578 (USCP
Wesco), 280 NLRB 818 (1986), affd 827 F 2d 581
(9th Cir 1987), and Printing Pressmen Local 7 (Met
ropolitan Printing Co), 209 NLRB 320 (1974)
Unlike the instant case, however, both of those
cases involved subcontracting disputes where there
was no disagreement among the parties about
which union would be entitled to perform the
work once the contractual issue concerning sub
contracting rights was resolved Thus the Board
concluded in USCP Wesco and Metropolitan Print
ing that the dispute in each case was essentially be
tween an employer and a union (over an alleged
contract violation) rather than between rival
groups of employees By contrast, this case pre
sents a traditional 10(k) situation in which an em
ployer having collective bargaining relationships
with several labor organizations initially assigned
work to one group of employees but then another
group of employees claimed the work Consequent
ly we conclude that there are competing claims to
disputed work between rival groups of employees
and, therefore, a traditional jurisdictional dispute
Finally Local 197 s claim that the arbitration
clause of the collective bargaining agreement be
tween it and Del Guidice provides a voluntary
method for resolving this dispute is without merit
The arbitration clause of that contract does not
bind the Mason Tenders and, therefore, no volun
tary method of resolving the dispute exists 10
Accordingly as we have found that there is rea
sonable cause to believe that a violation of Section
8(b)(4)(D) has occurred and that there exists no
agreed on method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act, we deny Local 197 s motion to quash the
notice of hearing and find that the dispute is prop
erly before the Board for determination
10 Teamsters Local 952 (Westside Material) 275 NLRB 1001 1004
(1985) (to constitute an agreed-on method for settlement a procedure
must bind all parties to the dispute) Nor are the Mason Tenders and
Local 197 bound by other provisions of their contracts with Del Guidice
to the same forum for the resolution of disputes
3
E Merits of the Dispute
Section 10(k) requires the Board to make an of
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)
The following factors are relevant in making the
determination of the dispute
1 Collective bargaining agreements
When the claim was made for the disputed work,
Del Guidice had collective bargaining agreements
with Local 19711 and the Mason Tenders 12
among others Provisions of both the Mason
Tenders agreement and Local 197 s agreement ar
guably cover the disputed work and thus the
agreements themselves do not favor either the em
ployees represented by Local 197 or those repre
sented by the Mason Tenders
2 Employer preference and past practice
It was the Employers preference to have the
employees represented by the Mason Tenders per
form the disputed work The record also shows
that it was the Employers past practice to have
those employees perform this type of work 13
These factors, then favor an award of the work to
that group of employees
3 Economy and efficiency
The record reveals that two employees repre
sented by Local 197 are to be hired as part of a set
ting gang which also includes one mason Indeed
two employees represented by Local 197 and one
employee represented by Local 84 were hired at
the Kol site after the threats to shut down the
r I This agreement was effective from July 1 1984 to June 30 1987
Additionally the agreement at art I sec 3 provides for a 30 -day exten
sion if no new agreement has been concluded by June 30 1987 (as was
the case here) Local 197 and Del Guidice did not enter into a subsequent
agreement
11 This agreement was effective from June 1 1984 to May 31 1987
Additionally the Mason Tenders and Del Guidice entered into a subse
quent agreement for the period June 1 1987 to May 31 1990
la The record reveals that the Employer used employees represented
by the Mason Tenders to perform this type of work on all its prior jobs
except the New York Public Library project On that job it used employ
ees represented by Local 197 for the tending work and employees repre
sented by Local 84 for the masonry work The Employer claims that it
did not use employees represented by the Mason Tenders on the New
York Library project because of threats similar to those alleged in this
case There is no indication that a charge was filed in connection with
that project however let alone that the Board found a reasonable basis
to believe that an 8(b)(4)(D) violation had occurred
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work were made These employees replaced one
employee represented by the Bricklayers and one
employee represented by the Mason Tenders As
there is no two to one ratio required by the Mason
Tenders and as there is no evidence indicating that
the two to one ratio is necessary assigning the
work to employees represented by the Mason
Tenders allows the Employer to tailor the number
of employees hired to its needs and to that extent
is more economical and efficient
Moreover it appears from the testimony of both
Jessup (a member of Local 197 for 27 years) and
Gorman (a member of Local 197 for 26 years) that
employees represented by Local 197 will not per
form tending work unless the masonry work is per
formed by employees represented by Local 84 Be
cause in the instant case Del Guidice had assigned
the masonry work to employees represented by the
Bricklayers an assignment of the tending work to
employees represented by Local 197 could create
the potential for disruption that might interfere
with the efficiency of the operation
In any event even absent this potential for dis
ruption the 2 to 1 tender/mason ratio used by
Local 197 indicates that the economy and efficien
cy of the operation favor awarding the work to
employees represented by the Mason Tenders
Conclusions
After considering all the relevant factors we
conclude that the employees represented by the
Mason Tenders are entitled to perform the work in
dispute We reach this conclusion relying on the
factors of employer preference and past practice
and economy and efficiency
In making this determination we are awarding
the work to employees represented by the Mason
Tenders not to that Union or its members The de
termination is limited to the controversy that gave
rise to this proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees represented by Mason Tenders
District Council of Greater New York L I U N A
AFL-CIO are entitled to unload handle roll
move and set stone at the Kol Israel Congregation
Synagogue site located at 2501 Avenue K Brook
lyn New York
2 United Derrickmen & Riggers Association
Local No 197 of New York all Long Island
Westchester and Vicinity International Association
of Bridge Structural and Ornamental Iron Work
ers AFL-CIO is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force Del Gui
dice Enterprise Inc to assign the disputed work to
employees represented by it
3 Within 10 days from this date United Der
nckmen & Riggers Association Local No 197 of
New York all Long Island Westchester and Vi
cinity International Association of Bridge Struc
tural and Ornamental Iron Workers AFL-CIO
shall notify the Regional Director for Region 29 in
writing whether it will refrain from forcing the
Employer by means proscribed by Section
8(b)(4)(D) to assign the disputed work in a manner
inconsistent with this determination