Laborers' International Union Of North America, Afl-Cio

1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Construction and General Laborers Local Union No. 721, a/w Laborers ' International Union of North America , AFL-CIO and Bechtel Con- struction, Inc. and Carpenters Local No. 624, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 1-CD-747

7 January 1986

DECISION AND DETERMINATION OF

DISPUTE By CHAIRMAN DOTSON AND MEMBERS

DENNIS AND JOHANSEN The charge in this Section 10(k) proceeding was filed 27 June 1985 by the Employer, alleging that the Respondent, Construction and General Labor- ers Local Union No. 721, a/w Laborers' Interna- tional Union of North America, AFL-CIO (Labor- ers Local 721) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to employees represented by Carpenters Local No. 624, a/w United Brother- hood of Carpenters and Joiners of America, AFL-

CIO (Carpenters Local 624). The hearing was held 28 and 29 August 1985 before Hearing Officer Peter W. Gallaudet. 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.

1. JURISDICTION The Employer, a Nevada corporation, is a gener- al construction contractor which maintains its prin- cipal place of business at 50 Beale Street, San Fran- cisco, California, and performs work at construc- tion' projects throughout the various States of the United States, including the Commonwealth of Massachusetts, and in foreign countries. During the course of the 12 months preceding the date of the hearing, the Employer had gross revenues in excess of $500,000 and purchased goods and materials valued in excess of $50,000 from points located outside the Commonwealth of Massachusetts for delivery to its construction project at Plymouth, Massachusetts. The parties stipulate, 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 Local 721 and Carpenters Local 624 are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a maintenance contractor for the construction of the Pilgrim Nuclear Power Sta- tion at Plymouth, Massachusetts. It employs mem- bers of several building trades, including laborers represented by Laborers Local 721 and carpenters, represented by Carpenters Local 624. In May or June 19851 laborers employed at the jobsite began digging a trench for laying conduit. The conduit was to be used as a "duct bank," which holds cable for transmitting electricity placed in the conduit after the conduit is set in the trench and covered with concrete. The employees were constructing the duct bank around three sides of the reactor building at the Pilgrim site.2 Sometime before 17 June, a heavy rainstorm caused some erosion in the trench in which the conduit was being laid. The laborers had placed plastic over the sides of the trench to keep the rain away from the banks, but the rain seeped in under the plastic. On 17 June, Al Gray, the Employer's line super- intendent on the duct bank work informed Ted Pearson, the Employer's project superintendent, that some form of wooden supports had to be placed in the trench to deal with the effects of the erosion before concrete could be poured over the conduit. Pearson testified that his initial impression was that the rain had washed out the banks of the trench and Gray needed to shore the banks up to prevent them from collapsing. After discussing the problem extensively, however, Pearson and Gray decided that they needed to place plywood boards around the conduit in the trench to provide a form for the concrete which was to be poured over the conduit. Pearson reported their decision to Noel Borck, the Employer's senior labor relations repre- sentative, on 17 June. Pearson and Borck discussed the nature of the work on 17 and 18 June. Borck asked Pearson if the work was intended as shoring, i.e., to hold up the banks. Pearson replied that it was not shoring, and explained the work's purpose.' Although Pearson and Borck discussed the fact that the base of the wooden planks would have the secondary function of preventing further dirt from slipping in under the conduit, they decided that primarily they needed to construct a form for the concrete. Borck and Pearson thus decided to assign the work to Carpenters-represented employees ' All dates refer to 1985 unless otherwise specified

2 The employees were placing about 1400 feet of duct bank, and the work in dispute involves about 30 feet of the total job

277 NLRB No. 150

LABORERS LOCAL 721 (BECHTEL CONSTRUCTION) 1439 based on their understanding of the Employer's preference and past practice. On 20 June employee John Hill, a member of Laborers Local 721, was working at the disputed site . Hill testified that he and the other employees working there were told to start shoring up the trench with plywood because some dirt had fallen into the trench and it was necessary to prevent the dirt from coming in under the conduit. Hill was subsequently taken off the disputed jobsite and transferred to another crew. On 21 June Hill learned that the Employer had assigned the disput- ed work to Carpenters-represented employees. Hill contacted Mike Halloran , the jobsite representative for the building trades International Unions which have a collective-bargaining agreement with the Employer, and Hill and Halloran went to see Pear- son. They informed Pearson that the work was shoring, and that it should therefore be assigned to employees represented by the Laborers according to the Employer's past practice. Peason replied that it was not shoring, but form work for the concrete. On 24 June Hill informed Louis Palavanchi, business manager of Laborers Local 721, that there was a dispute over the assignment of the work in question. On 26 June Palavanchi met with Edward Shyloski, the Employer's general superintendent, and other representatives of the Laborers and the Employer. Palavanchi showed Shyloski pictures of the disputed work and contended that it was shor- ing, and that the Employer should assign it to em- ployees represented by the Laborers. Shyloski ini- tially agreed that the work looked like shoring, but he called in Pearson, who explained the nature of the work and the circumstances of the assignment. Shyloski then agreed with the assignment Pearson and Borck made. Although there is some dispute over exactly what happened next, there is no dispute that em- ployees represented by Laborers Local 721 walked off the job at the site of the disputed work between 2 and 3 p.m. on 26 June to protest the assignment of the disputed work to employees represented by Carpenters Local 624. Shyloski, the Employer's general superintendent, testified that on 26 June Louis Palavanchi, the business manager of Labor- ers Local 721, told a member of Laborers Local 721 "to pull the men off the job." Pearson, the Em- ployer's project superintendent, corroborated Shy- loski's testimony. Shyloski also testified that he went to the disputed worksite on 26 June and heard an announcement that "Skippy [Palavanchi] wants everybody off the job." Palavanchi neither admitted nor denied he ordered the employees to strike. Rather, he testified that later that day he saw the employees walking a picket line, and at 3 p.m. he attempted to persuade them to go back to work. The employees set up a picket line at the en- trance to the construction site parking area, and some of the picketers carried signs reading "Bech- tel Unfair to Local 721." Shyloski testified that the picketers prevented a truck from delivering a load of concrete by blocking the entrance to the con- struction site. On 26 June Shyloski agreed to meet with Pala- vanchi again if the employees went back to work. Palavanchi asked Hill to tell the employees to go back to work, which they did on 27 June. Palavan- chi met with Shylo^ki and Borck at 8 a.m. on 27 June, and asked Shyloski to reconsider the assign- ment. Shyloski asked Palavanchi to respect the procedures for resolving jurisdictional disputes under the collective-bargaining agreement which the Employer had entered into with various Inter- national building trades unions.3 Palavanchi re- fused, and the meeting ended. Employees represented by Laborers Local 721 again walked off the job about 9:30 a.m. on 27 June, and set up a picket line. Neither Shyloski nor Pearson testified that Business Manager Palavanchi authorized the strike on 27 June, and Palavanchi testified only that he "found out" later that day that the employees had walked off the job. On both 26 and 27 June Laborers International Union officials sent telegrams to Laborers Local 721 and Palavanchi ordering them to end the work stop- page in compliance with the terms of the collec- tive-bargaining agreement entered into by the Em- ployer and the International building trades unions. Palavanchi called the foremen on the job on the evening of 27 June, and told them to tell the em- ployees to go back to work or they would be fired, and that the International had informed him it would send somebody to resolve the dispute. The employees reported for work as scheduled on 28 June. In U.S. district court on 28 June the Employer and Laborers Local 721 stipulated that Laborers Local 721 would take no action with regard to the jurisdictional dispute and that the employees repre- sented by Laborers Local 721 would remain on the job. Subsequently, the Employer and Laborers Local 721 agreed that the stipulation would remain in effect until the Board's determination in this 10(k) proceeding. The agreement became a part of the district court's order which issued on 20 August 1985.

3 The General Presidents' Project Maintenance Agreement by Con- tract, which the president of the Laborers International Union of North America signed. Laborers Local 721 contends it is not a party to this agreement. See factor 1, "Certifications and collective-bargaining agree- ments," infra 1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Work in Dispute The disputed work involves the cutting, erection, and installation of plywood boards around conduit constructed as a duct bank for transmitting electric lines at the Pilgrim Nuclear Power Station in Plymouth, Massachusetts. C. Contentions of the Parties The Employer contends that the disputed work constitutes a form for the pouring of concrete, and that it should be assigned to employees represented by Carpenters Local 624, citing its preference and past practice, area and industry practice, the rela- tive skills of the two groups of employees, and economy and efficiency of operation. Laborers Local 721 contends'that the disputed work was in- tended to function and actually does function as shoring for the banks of the trench. Laborers Local 721 urges that the Employer's past practice and area and industry practice all dictate that shoring work should be assigned to employees it represents. In addition , Laborers Local 721 submits that the Employer's preference to assign the work to Car- penters-represented employees is inexplicable in light of its past practice, that Laborers-represented employees possess the necessary skills to perform the disputed work, and that considerations of effi- ciency favor an assignment to Laborers-represented employees because they have done most of the other work associated with constructing the duct bank. Although Carpenters Local 624 did not submit a brief, it appeared and introduced evidence at the hearing to support its contention that the Employer correctly assigned the work to employ- ees represented by the Carpenters based on area and industry practice and the relative skills of the two groups of employees. D. Applicability of the Statute Before the Board may proceed with a determina- tion pursuant to Section 10(k) of the Act, it must be satisfied (1) that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated and (2) that the parties have not agreed upon a method for the voluntary adjustment of the dispute. With regard to (1) above, although the Laborers Local 721 business manager did not admit that he either authorized or ordered the employees to walk off the job, it is undisputed that employees repre- sented by Laborers Local 721 went out on strike on 26 and 27 June to protest the Employer's deci- sion to assign the disputed work to employees rep- resented by Carpenters Local 624 rather than to Laborers-represented employees. In addition, both Shyloski, the Employer's general superintendent, and Pearson, its project superintendent, testified without contradiction that the strikers prevented a secondary employer from making a delivery of concrete to the Employer's jobsite. It is not neces- sary for us to resolve the disputed testimony con- cerning whether an officer of Laborers Local 721 authorized the strike. It is well settled that a con- flict in testimony does not prevent the Board from proceeding under Section 10(k) because we are not required to find that a violation did in fact occur, but only that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated.4 Laborers Local 721 does not argue in its brief that such rea- sonable cause does not exist. It is undisputed that employees represented by Laborers Local 721 en- gaged in a strike and prevented a secondary em- ployer from making deliveries for the proscribed purpose of forcing the Employer to change its as- signment. Palavanchi, the business manager of La- borers Local 721, did not directly deny that he au- thorized the employees to strike, and there is cor- roborated testimony that he ordered the strike. Without ruling on the credibility of the testimony at issue, we conclude that there is sufficient evi- dence that Laborers Local 721 is responsible for the strike activity on the part of the employes it represents,s and therefore we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. The parties stipulated that they have not agreed upon a method for voluntary resolution of this dispute. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- 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 determining this dispute.

1. Certifications and collective-bargaining agreements The parties stipulated that the Board has not cer- tified either labor organization as the collective-

4 Iron Workers Local 563 (Midstates Corp.), 272 NLRB 1371 (1984), Pointers Local 813 (Cincinnati Floor), 261 NLRB 462, 464 (1982).

5 See Plumbers Local 15 (Minnesota Tile), 258 NLRB 455, 457 (1981), Carpenters Local 1485 (C. J. Reinke & Sons), 254 NLRB 1091, 1093, and fn 6 (1981)

LABORERS LOCAL 72=1 (BECHTEL CONSTRUCTION) bargaining representative for a unit of the 'E,mploy- er's employees. The Employer claims that it entered into a col- lective-bargaining .agreement with Laborers Local 721, the General Presidents' Project Maintenance Agreement by Contract (GPPMA). This ',agree- ment, effective 25 March 1982 through 24 March 1983 and year to year, thereafter absent timely notice of termination, was signed by the Employer and the general presidents of various building trades International unions, including the Laborers International. Although Laborers Local 721 is af- filiated with the Laborers International and has processed grievances under 'the GPPMA, it claims that it is not bound by the agreement. In any event, although the GPPMA does contain provisions for settling work jurisdiction disputes through the intercession of a committee of the general presi- dents of the International-unions, it does not con taro any provisions which cover the work in dis- pute. Laborers Local 721 claims that the Employer has agreed to abide by the terms of a collective- bargaining agreement between the Labor Relations Division of Construction Industries' of Massachu- setts, Inc. and the Massachusetts Laborers District- Council of the Laborers International Union of North America. Laborers Local 721 is a party to the agreement. Although the agreement does con-, taro provisions which would justify granting the work in dispute to Laborers-represented employ- ees, assuming the work. functioned as shoring for the duct bank trench, the Employer claims it is not a party to the agreement, and it is not listed as a signatory.. Although Carpenters Local 624 intro- duced an area agreement containing jurisdictional provisions to which it is a party, no party claims that the Employer is a party to the area agreement or has agreed to be bound by its terms. Because there is no collective-bargaining agree- ment covering the disputed work and clearly bind- ing both the Employer and either Laborers Local 721 or Carpenters Local 624, this factor is not helpful in resolving this dispute.

2. Company preference and past practice All parties agree that the Employer's preference, as well as its consistent past practice at the con- struction site, has been to, assign work involving the erection and installation of plywood structures which serve as concrete forms to employees repre- sented by Carpenters Local 624, and to assign simi- lar work involving structures which serve as shor- ing for trenches to employees represented by La- borers Local 721. 1441 The evidence concerning the Employer's past practice on another job involving digging a trench for a pipeline, comparable to the work in dispute, supports the Employer's contention that the work in dispute is concrete form work that the Employer has customarily assigned to employees represented by the Carpenters rather than shoring work which the Employer has customarily assigned to Labor- ers-represented employees. The Employer installed a pipeline for transmitting water to its sprinkler system for fire prevention ( a "fire liner") in a trench laborers dug in late 1982 and early 1983. Employ- ees represented by Laborers Local 721 installed plywood boards along the sides of the trench. Al though concrete was poured to form "thrust blocks" supporting elbows in the pipeline, the la- borers covered most of the pipe with dirt instead of concrete. They installed the plywood boards at various angles , either vertically or leaning away from each other, and they secured the boards pri- marily using adjustable construction "screw jacks" instead of nails and supporting beams. In contrast, employees represented by Carpenters Local 624 installed plywood 'boards at precise 90- degree angles along the entire length of the duct bank work in dispute. They supported the boards by nailing crossbeams into two-by-four, beams run-, ning along the entire length of the plywood. The rainstorm -before 17 June eroded the trench to some extent, and the .laborers removed, some of the loose dirt that washed into the trench . James' Gregg,. the Employer's production superintendent, testified that the plywood boards were necessary to contain the concrete in order to avoid pouring it into the entire trench, including the parts that were - shoveled out. Project Superintendent Pearson testi- fied that it was necessary to place the boards at precise angles to ensure that the Laborers-repre- sented employees poured just enough concrete to reach 2 inches above the reinforcing bar which they placed over the, conduit. 6 These precise angles, which required the employees cut the boards and their supporting beams to exact mews, urements and keep'them level and plumb along the length of the disputed work, contrast with the hap- hazard arrangement of the-boards which the em- ployees represented by Laborers Local' 721 placed in the "fire line" trench in 1982 and 1983. The Em- ployer's past practice. of assigning concrete form work to employees represented by the Carpenters is based in part on its preference that carpenters,

6 The Employer's specifications require this 2-inch coverage, or "toler- ance," of concrete in order to ensure compliance with Nuclear Regula- tory Commission requirements for nuclear plant construction 1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and not laborers, perform work with wood requir- ing such precise measurements. Thus, the Employer's preference and past prac- tice not only support its contention that all con- crete form work is assigned to employees repre- sented by Carpenters Local 624; these factors also support the conclusion that the work in dispute ac- tually functions as concrete form work of the type that is customarily assigned to employees repre- sented by the Carpenters. Therefore, these factors favor an award of the disputed work to employees represented by Carpenters Local 624.

3. Area and industry practice The parties agree that construction industry practice in the area is to assign concrete form work to employees represented by the Carpenters and shoring work to employees represented by the La- borers. The area agreement to which Laborers Local 721 is a party,' which covers the territorial jurisdiction of the Commonwealth of Massachu- setts, supports such an interpretation because it contains a provision granting employees represent- ed by the Laborers jurisdiction over "lagging and shoring of all ditches, trenches and manholes." The same agreement contains parallel provisions which grant Laborers-represented employees jurisdiction over stripping and moving of forms for the pouring of concrete, but not over their erection or installa- tion. The area agreement to which Carpenters Local 624 is a party, whose territorial jurisdiction includes Plymouth, Massachusetts, the site of the disputed work,8 gives employees represented by the Carpenters jurisdiction over "[t]he making, set- ting and stripping of all forms used in concrete work." Therefore, because, as outlined above, the nature of the work as compared to the Employer's past practice indicates that the disputed work functions as a form for the pouring of concrete, area and in- dustry practice favors awarding the disputed work to employees represented by Carpenters Local 624. 4., Relative skills Employees represented by the Laborers, as well as the Laborers Local 721 business manager, testi- fied that laborers are capable of using, and have used, a wide variety of tools and skills required for measuring, cutting, erecting, leveling, and installing ' See factor 1, "Certifications and collective-bargaining agreements," supra

8 Carpenters Local 624 entered into this agreement with the Southeast- ern Massachusetts General Contractors Association, The Associated Gen- eral Contractors of Massachusetts, Inc, and the Building Trades Employ- ers' Association of Boston and Eastern Massachusetts, Inc The Employer is not a party The agreement is effective 15 June 1983 through 31 May 1985 and year to year thereafter absent timely notice of termination plywood boards in trenches. Project Superintend- ent Pearson testified, however, that employees rep- resented by the Carpenters are more capable of performing the precise measurements and cuts, as well as the leveling and "plumbing" (i.e., keeping the boards vertical), involved in setting concrete forms. Pearson also testified, however, that some of the Laborers-represented employees might also be capable of performing this work. On balance, we find that this factor does not favor awarding the disputed work to either group of employees.

5. Economy and efficiency of operation With the exception of the disputed work, em- ployees represented by Laborers Local 721 have performed almost all the work associated with laying the duct bank, including digging the trench and pouring the concrete.9 The fact that the labor- ers must wait for the carpenters to install the ply- wood before the laborers pour the concrete sug- gests that it might have been more efficient to allow the laborers to perform the disputed work. The interruption of the work, however, is counter- balanced by the fact that employees represented by Carpenters Local 624 are more skilled than the La- borers-represented employees at making the precise measurements and performing the leveling and plumbing required for the construction of the structure so that the employees will keep the con- crete pour within the required amounts. In addi- tion, there were already several pipes traversing the ditch when it was dug, and it was necessary to sleeve those pipes and cut slots in the plywood to fit the boards over them. Project Superintendent Pearson testified that although some of the Labor- ers-represented employees might be capable of per- forming the precise measuring and cutting neces- sary for this work, Carpenters-represented employ- ees more frequently perform such work, and thus they can complete the job faster and more effi- ciently. Laborers Local 721 introduced extensive evi- dence concerning the pouring of the concrete into the plywood structure and around the conduit to support its contention that if the work was truly in- tended to function as a form, and not as shoring for the trench, it was not done efficiently. In particu- lar, employees represented by the Laborers testified that the Employer's superintendent directed them to remove the plywood before the concrete had set, which caused the concrete to "mushroom," i.e., to sluff off against the side of the trench. La- borers Local 721 contends that if the plywood

9 The duct bank work in the disputed area was completed before the hearing

LABORERS LOCAL 721 (BECHTEL CONSTRUCTION) structures were intended as forms, the Employer's purpose of limiting the amount of concrete poured over the duct banks was defeated because the "mushrooming" required the Employer to use more concrete than it had planned to use. In addi- tion, Palavanchi, the Laborers business manager, testified that plywood structures that function as shoring are customarily removed before concrete sets if concrete is poured between them because they are not being used to regulate the level of the concrete. James Gregg, the Employer's production super- intendent, conceded that some "mushrooming" did occur, but he testified that it happened because a substitute line superintendent deviated from the Employer's planned method for removing the ply- wood structure. The initial plan was to pour one "lift" of 18 inches of concrete, let it set, and pull the plywood up 18 inches. Then the final 18 inches would be poured, topped off, and allowed to set before the plywood was pulled completely out of the trench. The substitute superintendent, however, neglected to tell the Laborers-represented employ- ees to pull the plywood after they poured the ini- tial 18 inches of concrete, and instead they pulled the forms entirely out of the trench after the second 18-inch "lift" was poured on top of the first 18 inches. Although the production superintendent testified that the concrete had 1 to 1-1/2 hours to set before the laborers pulled the plywood out, he also testified that there was some "mushrooming" of the concrete where it had not set to a sufficient hardness. Thus, the Employer was required to use some extra concrete to make up for the "mush- rooming," though, contrary to the Laborers con- tention, it did not require an additional pour of concrete.; 0 The fact that some "mushrooming" of the con- crete occurred because the Employer mistakenly used an inefficient method for removing the ply- wood structure does not affect our conclusion that the disputed work was intended to function, and did function, as a form for the pouring of the con- crete. The Laborers contention concerns only the manner in which the employees performed the work, and does not change the nature of the work itself. Because it is necessary to interrupt the Laborers- represented employees' work so that the Carpen- ters-represented employees can erect and install the plywood boards, whereas the Carpenters-represent-

10 An additional pour was necessary, however, in parts of the duct bank where the Employer discovered that an electrician had set the con- duit 5 inches too high. 1443 ed employees can perform the work more efficient- ly than the Laborers-represented employees, we find that on balance the factor of economy and ef- ficiency of operation does not favor an award of the disputed work to either group of employees. Conclusions After considering all the relevant factors, we conclude that employees represented by Carpenters Local 624 are entitled to perform the work in dis- pute. We reach this conclusion relying on the Em- ployer's preference and past practice and the area and industry practice, which favor the granting of form work for the pouring of concrete to employ- ees represented by the Carpenters. Because we also conclude that the nature of the work, as well as the Employer's past practice, provides overwhelming evidence that the disputed work was intended to function, and did function, as a concrete form, and not as shoring for the trench, all the above-noted factors favor the assignment of the work to em- ployees represented by the Carpenters. In making this determination, we are awarding the work to employees represented by Carpenters Local 624, not to that Union or its members. The determina- tion 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 of Bechtel Construction, Inc. rep- resented by Carpenters Local No. 624, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO are entitled to perform the cutting, erection, and installation of plywood boards around conduit constructed as a duct bank for transmitting electric lines at the Pilgrim Nuclear Power Station in Plymouth, Massachusetts.

2. Construction and General Laborers Local Union No. 721, a/w Laborers International Union of North America, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Bechtel Construction, Inc. to assign the disputed work to employees represented by it.

3. Within 10 days from this date, Construction and General Laborers Local Union No. 721, a/w Laborers International Union of North America, AFL-CIO shall notify the Regional Director for Region 1 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.