ASSOC. GEN. CONTRACTORS v. BOSTON DIST. COUNCIL

• Decision Date: 03 January 1985
• Docket Number: Civ. A. No. 84-3603-G.
• Citation: 599 F. Supp. 1560
• Parties: ASSOCIATED GENERAL CONTRACTORS OF MASSACHUSETTS, INC., et al., Plaintiffs, v. BOSTON DISTRICT COUNCIL OF CARPENTERS et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

599 F. Supp. 1560

ASSOCIATED GENERAL CONTRACTORS OF MASSACHUSETTS, INC., et al., Plaintiffs, v. BOSTON DISTRICT COUNCIL OF CARPENTERS et al., Defendants.

Civ. A. No. 84-3603-G.

United States District Court, D. Massachusetts.

January 3, 1985.

John D. O'Reilly, III, Framingham, Mass., for plaintiffs.

Michael A. Feinberg, Feinberg & Feld, Richard W. Coleman, Boston, Mass., for defendants.

MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT¹

GARRITY, District Judge.

This action is an attempt to enjoin the defendants Boston District Council of Carpenters and Local # 33 of the United Brotherhood of Carpenters ("Carpenters") from taking their grievance against the Blount Brothers Corp. ("Blount") to arbitration. Underlying the grievance was a jurisdictional dispute between the Carpenters and the Massachusetts District Laborers Council of the Laborers International Union ("Laborers") concerning the erection of certain scaffolding at the Lafayette Place construction project.

Blount was the general contractor on the project and through its collective bargaining representative, Associated General Contractors, Inc. ("AGC"), Blount had entered into agreements with both the Carpenters and Laborers. Both agreements contained clauses which designated the job of erecting scaffolding as within the jurisdiction of the respective union. Both agreements also required Blount to subcontract "work covered by this agreement" only to companies which had also signed agreements with the respective unions.

In the course of the construction of Lafayette Place Blount subcontracted with the Anastasi Brothers Corp. ("Anastasi") for masonry work. Included in that subcontract was work involving the erection of masonry scaffolding. Anastasi was a signatory to a contract with the Laborers, but not with the Carpenters. Anastasi proceeded to assign the scaffolding work to its employees represented by the Laborers. The Carpenters objected to the assignment and engaged in a work stoppage.

The jurisdictional dispute was eventually resolved before the National Labor Relations Board (the "Board") pursuant to Section 10(k) of the National Labor Relations Act, 29 U.S.C. § 160(k). The Board found that Anastasi was the "employer" which was subjected to competing claims for the purposes of its decision. Laborers Local 223 (Anastasi Bros., Inc.), 272 NLRB No. 111, slip op. p. 6. In other words, as far as the Board was concerned, the dispute was only among Anastasi and the two unions. Blount, as the general contractor, was not directly involved.

In the process of deciding to whom Anastasi should have assigned the scaffolding work the Board considered (1) the existence of collective bargaining agreements between the employer (Anastasi) and the unions, (2) the employer's preferences and past practices, (3) area practice, and (4) economy and efficiency of operations. A majority of the Board found that each of these factors weighed in favor of Anastasi's assignment of the work to the Laborers. Id. at pp. 9-12.

Prior to the commencement of the Board proceedings the Carpenters filed a grievance with Blount concerning its having subcontracted the masonry scaffolding work to Anastasi, claiming that the subcontract was a breach of Blount's agreement with the Carpenters. Soon after the Board's decision was issued the Carpenters took their grievance before an arbitrator, who found that, despite the Board decision, the Carpenters' grievance was arbitrable and set the matter down for hearing on the merits. Blount and AGC then brought this action to restrain further arbitration.

The plaintiffs contend that the Carpenters' grievance is in reality a jurisdictional dispute and as such constitutes an impermissible attempt to circumvent the Board's decision. The Carpenters, on the other hand, argue that the dispute is purely contractual and is not preempted or controlled by the 10(k) determination. After examining the parties' memoranda and a hearing on December 20, 1984, we find that the Carpenters' position more accurately describes the nature of this dispute.

In arguing that the 10(k) determination preempts the arbitration, the plaintiffs contend that the Board implicitly decided the contract claim. Since the Board awarded the job of erection of masonry scaffolding to the Laborers such work is not "work covered by the Carpenters' agreement" according to the plaintiffs and is therefore not subject to that agreement's restraint on subcontracting. However, the Board's decision was much more narrow in scope. It held only that a particular employer, Anastasi, correctly awarded such work on a particular jobsite to the Laborers. The decision did not require Blount to subcontract the work to Anastasi; it did not prohibit Blount from subcontracting the work to employers who have an agreement with the Carpenters as well as the Laborers; nor did it hold that any subcontractor performing such work must assign it to the Laborers.

The plaintiffs do not dispute that Blount could have fulfilled their contractual...