AMERICAN ARBITRATION ASSOCIATION - - - - - - - - - - - - - - - - - - - - - - - x In the Matter of the Arbitration between LABORERS LOCAL NO.

731, LIUNA and DOCKBUILDERS LOCAL UNION NO. 1556, UBC&J and J.H. REID GENERAL CONTRACTOR Case No. 13 300 01464 11 (jurisdictional dispute)

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OPINION AND AWARD Pursuant to an agreement between the parties entered in a matter before the Honorable Lois Bloom, United States Magistrate Judge, the undersigned Arbitrator was selected in accordance with the rules of the American Arbitration Association to hear and decide a jurisdictional dispute between the above-named unions. A hearing was

held on October 12, 2011, at the offices of the American Arbitration Association in New York City, at which the parties appeared through counsel who submitted evidence and made arguments. The Dockbuilders

Union was represented by Daniel Shanley, Esq., the Laborers Union was represented by Evan Lerner, Esq., and the Employer was represented by Ronald Tobia, Esq. The Arbitrator kept the record open to permit the

unions to submit additional evidence.

The Laborers Union submitted

letters in support of its position, and the Dockbuilders Union did not submit any additional evidence. Based on the evidence submitted

and arguments made, the Arbitrator renders this Opinion and Award.

Issue At the outset of the hearing, the parties agreed to the following issue: Did the Employer properly assign fire watch work to the Dockbuilders Union rather than to the Laborers Onion at the Hamilton Avenue Marine Transfer Station in Brooklyn, N.Y.? If not, what is the proper assignment?

Facts The background facts of this case are not in dispute. The

Employer, a heavy highway and site contractor, which has worked on projects primarily in New Jersey, has had collective agreements with the Dockbuilders Union for decades, and with the Laborers Union for the last four or five years. Since late February, early March of

this year, the Employer has been working on a project at the Hamilton Avenue Marine Transfer Station for the New York City Department of Sanitation in Brooklyn, New York. As part of the job, it employs

members of both the Dockbuilders Onion and the Laborers Union, and, as noted, it has collective bargaining agreements with both Unions. Since there is burning and welding on the job, the Employer must have fire watches on duty while burning or welding work is being done, as required by the New York City Fire Code. Each of the Unions provides

training for its members which enables them to obtain the licenses

required to perform fire watch work, and members of both Unions have the necessary licenses to perform this work. The Employer first assigned the fire watch duty incidental to the Dockbuilders work to the Dockbuilders Union in accordance with its longstanding practice, but when the Laborers Union, who had been assigned the other fire watch work on the site, maintained that the

work assigned to the Dickbuilders Union should be assigned to its members, the Company re-assigned this work to the Laborers Union. Several days later, the Dockbuilders insisted that this work belonged to them, so the Employer, faced with each Union demanding the work, asked the stewards to work out the dispute. However, when the Unions

could not resolve this dispute, the Employer reviewed the language of the respective collective agreements, and the logistics of the job, and concluded that fire watch work incidental to the work being done by the Dockbuilders should be assigned to the Dockbuilders Union, and that the other fire watch duties would be assigned to the Laborers Union. The Laborers Union protested the Company's assignment of any

fire watch work to the Dockbuilders Union, resulting in charges at the National Labor Relations Board (NLRB), the Court action mentioned above, and, eventually, this hearing. At this hearing, the Dockbuilders Union and the Laborers Union relied on past practice, the Dockbuilders on the Employer's practice for decades, and the practice of other employers in New York City, of using Dockbuilders for fire watch duty on work incidental to the main work performed by Dockbuilders, and the Laborers on the past practice of employers in the five boroughs of New York City of using Laborers to do all the fire watch work. Each Union also cited the

language in its collective agreement, the Laborers relying on the work jurisdiction clause which specifically covers "fire watch" work and work performed by "fire watchers," and the Dockbuilders relying on the provisions which define its jurisdiction to include "All work on docks, piers, wharves, bulkheads and waterfront structures ...,"

"All work on inland foundations ...," and "All the work of: cutting, burning, welding, bracing concrete forms ...." At this hearing, the Employer offered evidence that it has always assigned fire watch work incidental to the work performed by Dockbuilders to the Dockbuilders Union, and other fire watch work to the Laborers Union, although it acknowledged that this job was its first project in New York City. The Employer noted that it rotates

its four-person Dockbuilders crew among the various jobs performed by Dockbuilders, including the fire watch work, that it would be an additional expense to have a Laborer do the fire watch work, and that the Dockbuilders, being fully familiar with all the work related to Dockbuilding work, particularly regarding the work they perform on

the water, are more knowledgeable than the Laborers regarding all the work on this job, and, therefore, the site is safer for all workers.

Positions of the Parties The Employer argues that its decision to assign fire watch work to the Dockbuilders Union was the proper assignment and should be honored, that the work on this project has more safety issues than sites with normal welding operations, particularly because work is being performed on water, where Dockbuilders have more experience, that the Employer has assigned other appropriate fire watch work on

Dockbuilders Union.

The Dockbuilders Union further argues that the

area practice supports this assignment of fire watch work to the Dockbuilders, that its workers have superior skills to the Laborers because of their unique knowledge of the work being performed on the site, especially work on the water, resulting in a safer workplace, and that it is more economical to use the Dockbuilders no need to hire an additional employee. since there is

In sum, based on the NLRB

criteria, and the wishes of the Employer, the Dockbuilders Union submits that the assignment by the Employer of this fire watch work to Dockbuilders is proper, and should be upheld. The Laborers Union agrees that the NLRB criteria should be applied in this case, and argues that the Employer has signed an Agreement with the Laborers Union specifically covering fire watch work, that this project is the Employer's first job in New York City, where the longstanding past practice is that all fire watch work is done by the Laborers Union, that the skills and training of the Laborers is on a par, if not superior to the Dockbuilders, and more

than sufficient to meet the needs of this job, and that the Laborers are less expensive than the Dockbuilders, and are not taking any work away from the Dockbuilders. The Laborers Union further argues that

the clear language of its Agreement is that fire watch work in New York City belongs to the Laborers Union, that Laborers do fire watch for all burning on jobs in New York City, and that the Employer understood this by assigning all the fire watch work on this job to the Laborers Union. In addition, in support of its position, the Laborers Union cites a decision by Arbitrator Stephen O'Beirne which finds that an

employer breached its agreement with the Laborers Union by assigning fire watch work to the Dockbuilders Union, and orders the employer to assign the fire watch duties to the Laborers Union rather than to the Dockbuilders Union. For these reasons, the Laborers Union submits

that fire watch duties on this job were improperly assigned to the Dockbuilders Union, and that the fire watch work at issue should be assigned to the Laborers Union.

Discussion The parties in this case agree that the determination of

the jurisdictional dispute between the Unions over the fire watch work at the Hamilton Avenue Marine Transfer Station should be based on the same criteria that the NLRB uses in determining jurisdictional

disputes under Section lO(k) of the National Labor Relations Act. The NLRB uses five criteria in determining jurisdictional disputes.

For the first criterion, certifications and collective bargaining agreements, the NLRB has not certified either the Dockbuilders Union or the Laborers Union, however, the Agreements of both Unions are broad enough to cover the fire watch work in dispute. The Laborers

Union Agreement has jurisdictional language that specifically covers "fire watchH work and "fire watchers.H The jurisdictional language

in the Dockbuilders Union Agreement has language covering "all workH on heavy construction projects, broad enough to include fire watch work, and, as noted below, employers have assigned fire watch work to the Dockbuilders Union on numerous sites as incidental to the work being performed by Dockbuilders on those sites. does not favor either Union. Thus, this criterion

With regard to the second criterion, employer preference

and past practice, although the Employer earlier assigned this fire
watch work to the Laborers Union, the Employer testified that its preference was to assign fire watch work incidental to Dockbuilders work to the Dockbuilders Union, and that in the past, it has always assigned the fire watch work incidental to Dockbuilders work to the Dockbuilders. This criterion favors the Dockbuilders Union; the fact

that this project is the Employer's first project within New York City, is not relevant to this criterion. As for the third criterion,

area practice, both Unions offered evidence, by testimony and/or by letters, that each Union has performed the disputed fire watch work within the five boroughs of New York City. The evidence indicates

that the Laborers Union performs more fire watch work within the fire boroughs of New York City than the Dockbuilders Union, and although the Dockbuilders Union does perform fire watch work within the five boroughs of New York City, this criterion favors the Laborers Union. The fourth criterion is relative skills and training of the employees who perform fire watch work. Both Unions provide training

for their members, and the employees represented by both Unions are fully trained to perform fire watch duties. However, the Employer

rotates the fire watch work incidental to Dockbuilders work among the employees who perform Dockbuilders work, and the evidence establishes that the Dockbbuilders working at the Hamilton Avenue Marine Transfer Station are more knowledgeable about the work being performed at this site. Thus, the Dockbuilders are more skilled at Dockbuilders work

on this project so that assigning the Dockbuilders the fire watch work incidental to Dockbuilders work provides a safer workplace for

everyone, especially since there is burning and welding work being performed on water, which creates a potentially more dangerous work site. Therefore, this criterion favors assigning the fire watch work

in dispute to the Dockbuilders Union. The last criterion is economy and efficiency of operations. The hourly wage rate of the Laborers Union is lower than the hourly wage rate of the Dockbuilders Union, but this is not a factor that the NLRB considers in deciding jurisdictional disputes. In any

event, it is more economical and efficient that the fire watch work incidental to Dockbuilders work be assigned to the Dockbuilders Union since each of the members of the Dockbuilders crew performs regular Dockbuilders work in addition to the fire watch work in dispute. As

a result, it is not necessary for the Employer to hire an additional employee. Moreover, as noted above, the operation at the site is

safer because of the knowledge the Dockbuilders have regarding the Dockbuilders work that is being performed. Thus, this factor favors

assigning the fire watch work in dispute to the Dockbuilders Union. In sum, considering all five criteria that are applied in determining jurisdictional disputes, the fire watch work in dispute was properly assigned to employees represented by the Dockbuilders Union. Finally, it is noted that Arbitrator O'Beirne's decision was

based on an agreement between an employer and the Laborers Union, that the Dockbuilders Union was not a party to the arbitration, and that Arbitrator O'Beirne did consider the criteria used by the NLRB in his decision to assign the fire watch work to the Laborers Union. Therefore, based on the facts and circumstances of this case, and for the reasons explained, the Arbitrator issues the following

Award The Employer properly assigned the fire watch work incidental to Dockbuilders work to the Dockbuilders Union, rather than to the Laborers Union, at the Hamilton Avenue Marine Transfer Station in Brooklyn, N.Y. be assigned this work. The Dockbuilders Union shall continue to

It is so ordered.

RICHARD ADELMAN STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK) I, RICHARD ADELMAN, do hereby affirm upon my oath as Arbitrator, that I am the individual who executed the foregoing instrument, which is my Opinion and Award.

Dated: October 27, 2011 RICHARD ADELMAN

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