Laborers (Eshbach Brothers)

National Labor Relations Board - Board Decisions

Jan 28, 2005

344 N.L.R.B. 201 (N.L.R.B. 2005)

LABORERS (ESHBACH BROS., LP)
344 NLRB No. 4
201
Laborers International Union of North America,
AFL–CIO and Eshbach Brothers, LP and Inter-
national Union of Operating Engineers, AFL–
CIO Local 542. Case 4–CD–1129–1
January 28, 2005
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
DECISION AND DETERMINATION OF DISPUTE
The underlying charge in this Section 10(k) proceeding
was filed on October 24, 2003,1 by Eshbach Brothers, LP
(the Employer) alleging that Laborers International Un-
ion of North America, AFL–CIO (Laborers) violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to employees it
represents rather than to employees represented by Inter-
national Union of Operating Engineers, Local 542 (Op-
erating Engineers). The hearing was held on August 12,
2004, before Hearing Officer Harold A. Maier.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer is a Pennsyl-
vania-limited partnership that operates as a masonry con-
tractor with a principal place of business in Reading,
Pennsylvania. During the 12-month period prior to the
hearing, the Employer purchased and received goods
valued in excess of $50,000 directly from points outside
the Commonwealth of Pennsylvania. The parties further
stipulated, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and that Laborers and Operating Engineers are
labor organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a contractor performing masonry
work in eastern Pennsylvania. The Employer is signa-
tory to collective-bargaining agreements with Laborers.
Since the 1960s, the Employer has been a member of
Employing Bricklayers Association (EBA), which is
made up of masonry contractors working in the five-
county area around Philadelphia, Pennsylvania.2 The
EBA has collective-bargaining agreements with Operat-
ing Engineers, Laborers, and Bricklayers. By a letter

1 Unless otherwise indicated, all dates are in 2003.
2 The five-county area consists of Bucks, Chester, Delaware, Mont-
gomery, and Philadelphia counties, in Pennsylvania.
dated January 22, 1983, the Employer withdrew its au-
thorization for the EBA to represent the Employer in
collective bargaining with Operating Engineers. By letter
dated February 7, 1983, Operating Engineers acknowl-
edged receipt of the Employer’s January 22 letter and
stated its desire to negotiate a new collective-bargaining
agreement with the Employer. However, no such nego-
tiations ever took place.
In October 2002, the Employer began work on a ma-
sonry project at Central Bucks High School in Bucks
County, Pennsylvania. The Employer assigned the opera-
tion of the rough terrain forklifts (Pettibones) at this pro-
ject to employees represented by Laborers.
On June 2, Robert Schmitt, a business agent for Oper-
ating Engineers, approached the Employer’s assistant
foreman, Peter Munhall, at the Central Bucks High
School jobsite and stated that “operating the Pettibones
was [Operating Engineers’] work and that something was
going to come of it,” and that “it wasn’t going away.”
Operating Engineers picketed the jobsite the following 2
days, temporarily closing the jobsite. The Employer
filed unfair labor practice charges over the picketing, but
the charges were dismissed because of the short duration
of the picketing and because Operating Engineers’ signs
only protested the Employer’s wages and nonadherence
to area standards.
By letter dated June 25, Operating Engineers informed
the Employer that it was filing a grievance over the Em-
ployer’s failure to employ employees represented by
Operating Engineers on its Pettibone forklifts. Operating
Engineers asserted that the Employer’s conduct violated
its collective-bargaining agreement with the EBA, to
which it asserted the Employer was a party, and sought
double damages as a pay-in-lieu remedy. Thereafter, in
an August 21 letter to the Employer, Laborers claimed
that employees it represents should operate the Em-
ployer’s Pettibone forklifts at the jobsite.
Pursuant to Operating Engineers’ grievance, an arbitra-
tion hearing was held on October 21. The Employer
refused to participate in the arbitration, because it was
not a signatory to the collective-bargaining agreement
between the EBA and Operating Engineers. On Novem-
ber 20, the arbitrator found that the Employer was bound
by the EBA’s collective-bargaining agreement with Op-
erating Engineers, and awarded the contractual double
damages to Operating Engineers.
By letter to the Employer dated October 22, Laborers
stated it will take “all necessary steps to protect its juris-
diction and assignment of work in this area, including
establishing a picket line in the event your company re-
assigns this work to another craft.” On October 24, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD202
Employer filed the instant charge alleging that Laborers
violated Section 8(b)(4)(D) of the Act.
B. Work in Dispute
The work in dispute is the operation of Pettibone fork-
lifts on the masonry project at Central Bucks High
School, in Bucks County, Pennsylvania.
C. Contentions of the Parties
The Employer and Laborers contend that there is rea-
sonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated, and that no voluntary means exist
for adjustment of the jurisdictional dispute. In addition,
the Employer and Laborers argue that the work in dis-
pute should be assigned to the employees represented by
Laborers based on the factors of: collective-bargaining
agreements; employer preference and past practice; area
and industry practice; skills and training; and economy
and efficiency of operations.
Operating Engineers contends that the notice of hear-
ing should be quashed because there are no competing
claims for the work in dispute, and because there is no
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. Operating Engineers argues that it has not
claimed the work, and has only sought to enforce its con-
tractual remedies under its collective-bargaining agree-
ment with the Employer. Operating Engineers further
argues that the threat by Laborers was a sham and a
product of collusion between the Employer and Laborers.
Finally, Operating Engineers argues that a collective-
bargaining agreement between Operating Engineers and
the EBA provides an agreed-upon method to resolve the
dispute over the work assignment. Alternatively, Operat-
ing Engineers contends that if the notice of hearing is not
quashed, employees represented by Operating Engineers
should be awarded the disputed work based on the fac-
tors of: collective-bargaining agreements; area and indus-
try practice; skill and training; and economy and effi-
ciency of operations.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute pursuant to Section 10(k) of the Act, it must be
satisfied that: (1) there are competing claims for the
work; (2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute.3

3 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001); Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB
619, 622 (1999); Laborers Local 113 (Super Excavators), 327 NLRB
113, 114 (1998).
We find that there are competing claims for the work.
Laborers has at all times claimed the work in dispute,
and Operating Engineers, despite its contention to the
contrary, has also claimed the work by virtue of its filing
of a pay-in-lieu grievance over the Employer’s assign-
ment of the work to Laborers. See Laborers Local 113
(Super Excavators), 327 NLRB 113, 114 (1998) (filing
of pay-in-lieu grievance constitutes a claim for work in
dispute).4
We also find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated. As described
above, by its October 22 letter to the Employer, Laborers
threatened to take certain action, including picketing, if
the work in dispute was reassigned to employees repre-
sented by Operating Engineers. Operating Engineers
argues that Laborers’ threat was a sham and a product of
collusion with the Employer. In support, it relies on the
timing of the Laborer’s letter, i.e., right after the arbitra-
tion on Operating Engineers’ grievance, and on the lack
of evidence that Laborers had any intention of following
through with its threat to picket.
Contrary to Operating Engineers’ contention, the evi-
dence fails to demonstrate that the threat was either a
sham or the product of collusion. Thus, the assistant
director of Laborers’ Construction Department, Gregory
Davis, testified that he drafted both the August 21 and
the October 22 letters because Laborers considered the
Pettibone forklifts a “tool of the trade,” and because La-
borers has always claimed “that piece of equipment.”
Further, an employee of the Employer, Wilson Eshbach,
testified without contradiction that there was no collusion
between the Employer and Laborers. “In the absence of
affirmative evidence that a threat to take proscribed ac-
tion was a sham or was the product of collusion, the
Board will find reasonable cause to believe that the stat-
ute has been violated.” Laborers Local 271 (New Eng-
land Foundation Co.), 341 NLRB No. 70, slip op. at 2
(2004).
We further find that there is no agreed-upon method
for voluntary adjustment of the dispute to which all par-

4 Member Liebman agrees that the evidence here is sufficient to sup-
port a finding, consistent with Laborers Local 113 (Super Excavators
I), supra, that the Operating Engineers have made a claim to the work.
See also Laborers Local 113 (Michels Pipeline Construction), 338
NLRB 480, 485 (2002) (concurring opinion of Member Liebman). In
her view, this case is distinguishable from Laborers Local 113 (Super
Excavators II), 338 NLRB 472 (2002), where she dissented. In that
case, the Operating Engineers Local 139, which had a collective-
bargaining agreement with the employer, filed grievances that did not
seek reassignment of the disputed work or pay-in-lieu. Rather, the
grievances sought “only that the employer pay the employee(s) who
actually performs the work at the (higher) rate specified” in the parties’
agreement. 338 NLRB at 478–479.
LABORERS (ESHBACH BROS., LP) 203
ties are bound. Specifically, we find no merit to Operat-
ing Engineers’ contentions that both Operating Engineers
and Laborers are required to submit jurisdictional dis-
putes to the “Plan for National Joint Board for Settlement
of Jurisdiction Disputes,” and that the EBA’s collective-
bargaining agreement with Operating Engineers requires
both parties to present any jurisdictional dispute to that
tribunal. “[I]n order for an agreement to constitute an
agreed-upon method for voluntary adjustment, all parties
to the dispute must be bound to that agreement.” Nickel-
son Industrial Service, 342 NLRB 954, 955 (2004). The
Employer is not a party to the EBA agreement because,
as noted above, in 1983 it withdrew its authorization for
the EBA to negotiate on its behalf. Further, the Em-
ployer’s collective-bargaining agreement with Laborers
does not include any reference to the EBA’s collective-
bargaining agreement or the “Plan for National Joint
Board for Settlement of Jurisdictional Dispute.” As the
evidence does not establish that the Employer is bound
by the EBA agreement, we, therefore, find that there is
not an agreed-upon method for voluntary adjustment
within the meaning of Section 10(k) of the Act. Accord-
ingly, the dispute is properly before the Board for deter-
mination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia 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 ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in deciding this dis-
pute.
1. Certification and collective-bargaining agreements
There is no record evidence of any applicable Board
certifications concerning the employees involved in this
dispute.
The Employer presented evidence that it has a collec-
tive-bargaining agreement with Laborers. That agree-
ment appears to cover the forklift work in dispute, inas-
much as it states that it covers work that is “historically
or traditionally or contractually assigned to and per-
formed by members of the Laborers . . . including, but
not limited to, the tending of masons, unloading, mixing
and all handling of all materials . . . [c]onveying of such
materials by any mode or method; unloading, erecting,
moving, adjustment and dismantling of all scaffolds.”
Operating Engineers contends that the Employer is
bound by a collective-bargaining agreement between the
EBA and Operating Engineers that covers “. . . operating
. . . of all mechanical equipment used in and about the
construction of building . . . including . . . fork lifts . . .”
However, as stated above, the record shows that in 1983,
the Employer withdrew its authorization for the EBA to
bargain on its behalf with Operating Engineers and that
no subsequent negotiations took place between the Em-
ployer and Operating Engineers. Therefore, we find that
the factor of collective-bargaining agreements favors an
award to the employees represented by Laborers.
2. Employer preference and past practice
The record shows that the Employer prefers that em-
ployees represented by Laborers continue performing the
work in dispute. At the hearing, the Employer’s chief
administrative officer, Kenneth Eshbach, testified that
the Employer’s past practice is to assign forklift work of
the kind in dispute to employees represented by Labor-
ers, and that the Employer prefers to continue employing
the employees represented by Laborers. Eshbach further
testified that the Employer has employed individuals
represented by Laborers since at least 1983, and that the
Employer has not employed employees represented by
Operating Engineers to perform any work of the kind in
dispute. Accordingly, we find that this factor favors an
award of the disputed work to employees represented by
Laborers.
3. Area and industry practice
At the hearing, Laborers and the Employer presented
testimony that the operation of rough terrain forklifts is
work traditionally performed by Laborers-represented
employees in the five-county area in Pennsylvania.
Kenneth Eshbach testified that the Employer has em-
ployed employees represented by Laborers to operate the
forklifts in projects within this area. Laborers’ represen-
tative Greg Davis, and Mason Contractors Association
representative Mike Adelizzi, testified that the industry
practice in the five-county area is for employees repre-
sented by Laborers to perform forklift work of the kind
in dispute.
Operating Engineers also presented testimony that the
disputed work has been performed by members of Oper-
ating Engineers at similar projects within the five-county
area. Representatives of five masonry contractors who
are members of the EBA, testified that they employ em-
ployees represented by Operating Engineers to operate
Pettibone forklifts. Because the evidence shows that
employees represented by both Operating Engineers and
Laborers have performed the disputed work within the
five-county area, we find that this factor does not favor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD204
an award of the disputed work to either group of employ-
ees.
4. Relative skills and training
The Employer and Laborers presented testimony that
Laborers’ mason tenders are required to obtain special-
ized training and certification in operating all-terrain
forklifts and scaffold building, that they possess the re-
quired skills and training to perform the disputed work,
and that they have performed this type of work in the
past. Adelizzi and Davis testified that employees repre-
sented by Laborers receive training in mason tending
through a 4-year construction apprenticeship program.
Kenneth Eshbach testified that the Employer is satisfied
with the quality of the work performed by its Laborers-
represented employees.
Operating Engineers contends that its members have
the requisite skills needed to perform the disputed work.
Operating Engineers’ representative, Charles Priscopo,
testified that its members must complete 4 years of train-
ing and certification before achieving journeyman status.
A masonry contractor, Brendon Ward, testified that the
employees represented by Operating Engineers are
skilled in operating forklifts. On this record, we find that
employees represented by both unions have the skills and
training necessary to perform the work in question. This
factor, therefore, does not favor an award of the disputed
work to either group of employees.
5. Economy and efficiency of operations
Kenneth Eshbach testified that in addition to operating
the forklifts, its Laborers-represented employees also
perform other work for the Employer at this project, such
as mason tending and erection of scaffolding. According
to Eshbach, if employees represented by Operating Engi-
neers operated the forklifts, the Employer would still
assign the mason tending and the erection of the scaf-
folding to Laborers-represented employees. Eshbach
testified that it is more economical and efficient to have
employees represented by Laborers perform the whole
project because they are more versatile than employees
represented by Operating Engineers.
Operating Engineers contends that the high skill level
of employees it represents makes it more efficient to use
employees it represents to perform the work in dispute.
In support, Operating Engineers presented the testimony
of masonry contractors John Giovanazzo and Nick Sabia.
Giovanazzo testified that the performance level of em-
ployees represented by Operating Engineers is such that
it does not make using them less competitive than using
Laborers-represented employees. Sabia testified that it is
economically beneficial to use Operating Engineers
members, because “if the guy’s a good operator, . . . he’s
much quicker, much safer, knows how to maintenance
his machine.”
We find that, on balance, because the Laborers are per-
forming other work on the project, aside from the dis-
puted work, the factor of economy and efficiency of op-
erations favors an award of the disputed work to those
employees.
Conclusions
After considering all the relevant factors, we conclude
that the employees represented by Laborers are entitled
to perform the work in dispute. We reach this conclusion
relying on the factors of collective-bargaining agree-
ments, employer preference and past practice, and econ-
omy and efficiency of operations. In making this deter-
mination, we are awarding the work to employees repre-
sented by Laborers not to that Union or its members.
The determination is limited to the controversy that gave
rise to this proceeding.
Scope of Award
The Employer and Laborers request that the Board is-
sue a broad award covering the five-county area consist-
ing of Bucks, Chester, Delaware, Montgomery, and
Philadelphia counties, Pennsylvania. The Employer and
Laborers argue that this is necessary to avoid the recur-
rence of similar work disputes between Operating Engi-
neers and Laborers.
“The Board customarily declines to grant an areawide
award in cases in which the charged party represents the
employees to whom the work is awarded and to whom
the employer contemplates continuing to assign the
work.” Laborers Local 243 (A. Amorello & Sons), 314
NLRB 501, 503 (1994). See also Laborers (Paul H.
Schwendener, Inc.), 304 NLRB 623, 625 (1991). Be-
cause Laborers is the charged party in this case, and be-
cause the Employer contemplates continuing to assign
this work to employees represented by Laborers, we con-
clude that the issuance of a broad award would be inap-
propriate, and we shall limit our determination accord-
ingly.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Eshbach Brothers, LP, represented by
Laborers’ International Union of North America, AFL–
CIO, are entitled to perform the operation of the rough
terrain forklifts necessary for the masonry project at Cen-
tral Bucks High School construction site located in
Bucks County, Pennsylvania.