Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mascaro Construction, Co., L.P. v. Local Union No. 210

May 15, 2009

MASCARO CONSTRUCTION, CO., L.P., PETITIONER,
v.
LOCAL UNION NO. 210, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Petitioner Mascaro Construction Co., L.P. ("Mascaro"), brings this action pursuant to 9 U.S.C. § 1 et seq., and 29 U.S.C. § 185 seeking a permanent stay of a determination made by respondent Local Union No. 210, Laborers International Union of North America, AFL-CIO ("the Laborers' Union" or "Union") that Mascaro has violated a Collective Bargaining Agreement ("CBA") to which the parties are both signatories. Specifically, Mascaro contends that the determination made by the Laborers' Union that Mascaro violated the CBA by subcontracting with a member of the Carpenters' Union for the unloading and handling of finished door products at the construction site of the Federal Courthouse in Buffalo, New York, is without merit, and not binding, because the Laborers' Union lacks authority under the CBA to make such a determination. Accordingly, Mascaro seeks a permanent stay of enforcement of the determination made by the Laborers' Union, and asks that the court void the Union's determination.

Respondent Laborers' Union contends that Mascaro violated the CBA by subcontracting work covered by the CBA to a construction company that is not a party to the Laborers' Union CBA. The Laborers' Union further contends that because the CBA grants the Union sole authority to determine disputes regarding subcontracting, it acted within its authority in determining that Mascaro violated the CBA. The Laborers' Union seeks an order from the Court affirming its determination that petitioner violated the terms of the CBA, and an award of attorneys' fees.

For the reasons set forth below, I grant Mascaro's petition, and Order that respondent be enjoined from attempting to enforce its decision that Mascaro violated the CBA by awarding certain work to carpenters, rather than to the laborers. I further grant petitioner's request to vacate the Union's determination that Mascaro breached the CBA to which the parties are a signatory. Finally, I deny respondent's countercalims.

BACKGROUND

Petitioner Mascaro Construction Co., L.P. is the general contractor in charge of construction of the new federal courthouse in Buffalo, New York. As the general contractor, Mascaro routinely subcontracts work out to various other construction companies for the purpose of completing discrete portions of the construction project. Moreover, Mascaro is a signatory to CBA's with various local unions, including the respondent Laborers' Union Local 210, and Local 289 of the Carpenters' Union.

In fulfilling its duties as general contractor, Mascaro awarded a contract for the installation of certain pre-finished doors and door bucks to Claude Mayo Construction, ("Mayo") a company that is a signatory to the Carpenters CBA, but not to the Laborers CBA. The contract awarded to Mayo included not only the installation of the doors and door bucks, but also the transportation and handling of the doors and associated materials. Indeed, the Carpenters' Union CBA, to which both Mascaro and Mayo are signatories, expressly provides that the unloading and stocking of pre-finished doors is within the jurisdiction of the Carpenters' Union. See Agreement between the Empire State Regional Council of Carpenters and Construction Employers, May 15, 2007 to May 14, 2012 at Art. XIII, ¶ 3(b) (providing that "[t]he handling . . . installing and dismantling of . . . all materials used by carpenters" is within the jurisdiction of carpenters). By contrast, the Laborers CBA is silent with respect to the transportation and handling of pre-finished doors for installation at a project site.

On February 16, 2009, the Laborers' Union filed a grievance with Mascaro claiming that Mascaro had violated the Laborers' CBA by "failing to hire Laborers to perform the work of unloading doors and door bucks" at the federal courthouse construction site. See February 16, 2009 letter from Laborers' Union to Mascaro Construction Co. Thereafter, Mascaro informed the Laborers' Union that the work of unloading the doors had been awarded to the Carpenters' Union pursuant to the Carpenters' Union CBA, to which both Mascaro and Mayo were signatories. See February 20, 2009 letter from Mascaro Construction Co. to Peter Capitano. Mascaro further explained because the Carpenters' Union claimed jurisdiction over the unloading and transportation of the doors and door bucks, a jurisdictional dispute existed between the Laborers and Carpenters, and therefore the dispute could not properly be resolved through the grievance process. Nevertheless, on March 13, 2009, the Laborers' Union informed Mascaro that the Union, pursuant to Article XIII of the CBA, unilaterally determined that Mascaro had violated Article XII of the CBA by awarding work covered under the CBA to a non-signatory to the Laborers' CBA. See March 13, 2009 letter from attorney Richard Furlong to Mascaro Construction Co. The Laborers demanded information regarding the contract between Mascaro and Mayo for the purpose of determining the amount of damages due the Laborers for Mascaro's alleged breach of the CBA. This action ensued.

DISCUSSION

Mascaro contends that the grievance filed by the Laborers' Union creates a jurisdictional dispute between the Laborers and Carpenters as to who is entitled to perform the work of unloading and handling pre-finished doors and door bucks at the construction site, and as a result, the Laborers' Union may not, pursuant to the Laborers' CBA, unilaterally determine that Mascaro improperly awarded Laborers' work to the Carpenters' Union. The Laborers' Union contends that it has not raised a jurisdictional dispute, but instead has merely determined that Mascaro violated the CBA's prohibition against subcontracting Laborers' work to nonsignatories.

Article XII of the Laborers' Union CBA provides in relevant part that any employer bound by the terms of the CBA "shall not subcontract work covered by this Agreement to a firm, person or group where such firm, person or group is not a party to or bound by this Agreement . . . ." See Agreement between Local Union No. 210 Laborers International Union of North America AFL-CIO and The Employer, 2007-2012 at Art. XII, ¶ 1 (emphasis added). The CBA further provides that: "Should any dispute arise concerning the interpretation or application of any clause in this agreement directly or indirectly, other than those relating to . . . jurisdictional disputes, the Union shall have the sole jurisdiction to decide such dispute. Id. at Art. XIII, ¶ 1(a)(emphasis added). Pursuant to this dispute resolution clause, the Laborers' Union contends that it has the sole, unilateral authority to determine what work is covered by the Agreement, and whether or not an employer breached the agreement by awarding such work to a nonsignatory to the CBA. The Laborers' Union contends that because the question of whether or not an employer has awarded Laborers' work to a non-signatory goes to the issue of breach of contract, and does not raise a dispute as to jurisdiction. Accordingly the Union claims that it has the authority to unilaterally determine whether or not a breach has occurred.

I find, however, that the grievance raised by the Laborers' Union claiming that Mascaro violated the CBA by awarding work "covered by the Agreement" to a non party to the Agreement raises a jurisdictional dispute that may not be unilaterally resolved by the Union pursuant to the grievance process set forth in the CBA. In the context of labor relations law, a "jurisdictional dispute" is "a dispute between two or more groups of employees over which is entitled to do certain work for an employer." N.L.R.B. v Radio & Television Broadcast Eng. Union, 364 U.S. 5763, 579 (1961). In the instant case, the Carpenters' Union has claimed entitlement (pursuant to express provisions of its CBA and historical labor practices in the Buffalo, New York area)) to the work of unloading and transporting doors and door bucks. See Letter of Thomas Burke dated April 2, 2009. By asserting that Mascaro awarded "work covered by [the Laborers'] Agreement" to a non-signatory to the Agreement, the Laborers have claimed entitlement to the same work. Accordingly, a jurisdictional dispute exists that may not be resolved unilaterally by the Union pursuant to the CBA's dispute resolution procedure.

The Laborers' Union claims, however, that it has not claimed entitlement to the work of unloading and transporting doors and/or door bucks, but simply that it has made a determination that Mascaro improperly awarded that work to a non-signatory. I disagree. It is undisputed that in order to substantiate a violation of the subcontracting clause of the CBA, the work that was allegedly improperly awarded must have been "work [that] is covered by [the Laborer's Collective Bargaining] Agreement." See Agreement between Local Union No. 210 Laborers International Union of North America AFL-CIO and The Employer, 2007-2012 at Art. XII, ¶ 1 Accordingly, in concluding that Mascaro violated the subcontracting clause of the CBA, the Laborers' Union necessarily determined that the work of unloading and handling the doors and door bucks was work that was covered under the CBA. In doing so, and perhaps more importantly, in seeking compensation for having lost that work, the Laborers' claimed the work as their own, and created a jurisdictional dispute. See Local 30, United Slate, Tile and Composition Roofers, v. N.L.R.B., 1 F.3d 1419, 1427 (3rd Cir., 1993) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.