Bricklayers (Cretex Construction Services)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 343 NLRB No. 110 1030 International Union of Bricklayers and Allied Craft- workers, AFL–CIO and Bridge, Structural and Reinforcing Iron Workers, Local Union No. 1 of the International Association of Bridge, Struc- tural, Ornamental and Reinforcing Iron Work- ers, AFL–CIO and Cretex Construction Ser- vices, Inc. Case 13–CD–720 December 16, 2004 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH The charge in this Section 10(k) proceeding was filed on August 25, 2004, by Cretex Construction Services, Inc. (Cretex). It alleges that the Respondent, Interna- tional Union of Bricklayers and Allied Craftworkers, AFL–CIO (the Bricklayers) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing Cretex to assign certain work to employees represented by the Bricklayers rather than to employees represented by the Bridge, Structural and Reinforcing Iron Workers, Local Union No. 1 of the International Association of Bridge, Struc- tural, Ornamental and Reinforcing Iron Workers, AFL– CIO (the Iron Workers). A hearing was held on Septem- ber 15 and 23, 2004, before Hearing Officer Lisa Fried- heim-Weis. Thereafter, Cretex, the Bricklayers, and the Iron Workers filed briefs in support of their positions. The Iron Workers also filed a motion to quash the Sec- tion 10(k) notice of hearing. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The parties stipulated that the Employer is an Illinois corporation engaged in the business of erecting precast concrete and that it annually ships goods valued in ex- cess of $50,000 from its facility in Rochelle, Illinois, to customers located outside the State of Illinois. Accord- ingly, on the basis of the parties’ stipulations, we find that Cretex is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Bricklay- ers and the Iron Workers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts The current dispute involves precast concrete erection work at Midway Airport in Chicago, Illinois. Cretex is a construction company that performs precast concrete erection projects in the Chicago area. It recog- nizes the Bricklayers as the exclusive bargaining repre- sentative of its field employees under Section 9(a) of the Act. It is party to a collective-bargaining agreement with the Bricklayers providing that employees represented by the Bricklayers shall perform all its precast concrete erection work, and its practice is to employ only employ- ees represented by the Bricklayers for this purpose. In January 2004, Cretex submitted a bid to a general contractor, F. H. Paschen/S. N. Nielsen, Inc. (Paschen), to perform the precast concrete erection work for a park- ing deck at Chicago’s Midway Airport (the Midway Pro- ject). In January or February of that year, Paul Heiman, Cretex’s vice president, was informed orally that Cretex had been awarded the subcontract. In late 2003 and early 2004, Iron Workers Local 1 was attempting to organize several of the precast concrete erection contractors in the Chicago area. On March 25,1 Iron Workers representative, Danny Caliendo, met with Cretex employees working on another Cretex project. In the course of his conversation with them regarding the organizing drive, he stated that Cretex had been awarded the Midway Project, that the Iron Workers traditionally perform this type of work, and that the Iron Workers would take whatever actions were necessary to get the work back. On April 12, the city of Chicago executed a contract with Paschen for the Midway Project, which named Cre- tex as the subcontractor for the precast concrete erection work. On August 9, Paschen sent Cretex a letter of in- tent to award it the precast concrete erection work, and on August 11 Cretex sent a letter of assignment to the Bricklayers giving notice that its Bricklayers-represented employees would perform Cretex’s work on the Project. On August 23, Heiman spoke on the telephone with Bricklayers Business Agent Don Newton about the Midway Project. Newton said he had heard rumors that the Iron Workers were going to claim the precast con- crete work and reminded Heiman that Cretex was obliged to assign the work to Bricklayers-represented employees under the collective-bargaining agreement. Heiman acknowledged hearing similar rumors and said that he intended to assign the work to employees repre- sented by the Bricklayers, but that he did not know what he would do if the Iron Workers claimed the work. Heiman also stated that he had heard from a Paschen representative that the Iron Workers had been asking who would be erecting the precast concrete on the Mid- way Project and that the Paschen representative was con- 1 All dates are in 2004. BRICKLAYERS (CRETEX CONSTRUCTION SERVICES) 1031 cerned about potential labor issues. Around this time, Heiman contacted Bricklayers regional director, Thomas McClanahan, informed him of these same concerns, and sought assurance that “we’re going to be represented well with the Bricklayers.” On August 24, Heiman re- ceived a letter from McClanahan stating that the Brick- layers were “fully prepared to picket . . . and apply other appropriate means of lawful pressure on all effective parties to this project” if Bricklayers-represented em- ployees were replaced with employees represented by the Iron Workers. On August 25, Cretex filed the instant charge. On August 31, the Iron Workers requested a hearing to determine jurisdiction over the Midway Project before the Joint Conference Board (JCB) established under the standard agreement between the Cook County Building Trades Council and the Construction Employers Associa- tion. The JCB arbitrator dismissed the case on Septem- ber 22 on the ground that the JCB had no jurisdiction over Cretex because Cretex was not bound by the stan- dard agreement. Meanwhile, over the course of August and September, Paschen and Cretex settled the details of their subcon- tracting agreement. Paschen confirmed its intent to award Cretex the subcontract by a letter dated September 14, and the parties executed the final subcontract on Sep- tember 21. In this final contract, the parties deleted the clause of Paschen’s standard subcontracting agreement that required the submission of work jurisdiction disputes to the JCB. B. Work in Dispute The notice of hearing states, and Cretex and the Brick- layers stipulate, that the work in dispute is “the precast concrete erection work for an elevated parking structure and dedicated busway route at Midway Airport in Chi- cago, Illinois.” The Iron Workers characterize the work in question as “structural” precast concrete erection. Since this distinction does not vary the nature or scope of the work in dispute, we find that the work in dispute is as set forth in the notice of hearing. C. Contentions of the Parties The Iron Workers moves to quash the notice of hear- ing, arguing that there is no reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. It argues that there are no competing claims to the work because Caliendo’s March 25 remarks had an organiza- tional object and were made before Cretex had the au- thority to assign the disputed work, and that the JCB fil- ing was an attempt to settle the dispute rather than a claim to the work. It further contends that the threat made by the Bricklayers in its letter to Heiman was a sham intended only as a maneuver to bring this dispute before the Board. On the merits, the Iron Workers ar- gues that the work should be awarded to employees it represents on the basis of relative skills and safety, area and industry practice, and a 1962 agreement between the Iron Workers and Bricklayers international unions as- signing structural precast concrete work to employees represented by the Iron Workers. Cretex asserts that this dispute is properly before the Board. It contends that the Iron Workers claimed the work through its JCB filing and Caliendo’s remarks re- garding the Midway Project on March 25, and that the Bricklayers’ letter to Heiman provides reasonable cause to believe that the Bricklayers violated Section 8(b)(4)(D) of the Act. It further asserts that the work should be awarded to employees represented by the Bricklayers on the basis of Cretex’s collective-bargaining agreement with the Bricklayers, employer preference, relative skills, economy and efficiency of operations, and industry and area practice. Cretex also contends that the Board should issue a broad order awarding all Cretex’s precast concrete erection work in the Chicago area to employees represented by the Bricklayers. The Bricklayers contends that the statute is applicable because competing claims exist and there is reasonable cause to believe that the Bricklayers violated Section 8(b)(4)(D) of the Act. The Bricklayers also argues that the work should be assigned to employees represented by the Bricklayers on the basis of collective-bargaining agreements, employer preference and practice, industry and area practice, relative skills and training, economy and efficiency of operations, loss of existing jobs, and prior Board awards. 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 established that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated. This requires a finding that there is reasonable cause to believe that there are competing claims to disputed work between rival groups of employees and that a party has used proscribed means to enforce its claim.2 Although the Iron Workers denies that it claimed the work in dispute, we find that there is reasonable cause to believe that there are competing claims. As discussed above, on March 25 Iron Workers business agent, Caliendo, made remarks to Cretex employees that on their face constituted a claim to the Midway Project pre- 2 In addition, the Board must find that no method for voluntary ad- justment of the dispute has been agreed on. None of the parties con- tends that such a method presently exists. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032 cast concrete erection work. The Iron Workers cite tes- timony that during the same meeting, Caliendo also en- gaged in discussions and activities related to the Iron Workers’ drive to organize precast concrete erection con- tractors in the Chicago area. The possibility that acts or statements that constitute a claim to work may also have an organizational object outside the scope of Section 8(b)(4)(D) is, however, insufficient to prevent a finding of reasonable cause.3 We also reject the Iron Workers’ contention that Caliendo’s remarks regarding the Midway Project cannot constitute a claim for work because, at the time they were made, Cretex had only received oral notification that it had been awarded the subcontract and so did not possess the authority to assign the Midway Project to its employ- ees. By the time the case reached the Board, Cretex and Paschen had executed a formal contract for the precast work on the Midway Project, dispelling any uncertainty about Cretex’s authority to assign the work and rendering the dispute ripe for our determination.4 We find also that there is reasonable cause to believe that the Bricklayers used means proscribed under Section 8(b)(4)(D) when, in its letter to Heiman, it threatened to picket Cretex if the Midway Project work were reas- signed. The Iron Workers urges the Board to find that this threat was a sham because it was made immediately after discussions between Cretex and Bricklayers repre- sentatives, the letter’s wording mirrored that of an earlier letter sent by the Bricklayers after the Iron Workers claimed another precast project involving Cretex, the Bricklayers took no steps to invoke its rights under its collective-bargaining agreement with Cretex, and realiza- tion of the threat would have violated the no-strike clause 3 Cf. Longshoremen ILA (Reserve Marine Terminals), 317 NLRB 848, 850 (1995) (finding charged union’s conduct within ambit of Sec. 8(b)(4)(D) where that conduct had “an area standards purpose” as well as a proscribed jurisdictional object). Our finding that there is reason- able cause to believe that Caliendo’s statements constituted a claim for work is further supported by the fact that the Iron Workers later filed a claim for the work with the Joint Conference Board. See, e.g., Brick- layers (W. R. Weis Co.), 336 NLRB 699, 700 (2001). 4 The Iron Workers’ reliance on Sheet Metal Workers Local 28 (Hausman Engineering), 316 NLRB 1149 (1995), is misplaced. In Hausman Engineering, the Board found that no competing claims existed, although four subcontractors had bid on the work at issue and the union representing three of the subcontractors’ employees had claimed the work, because none of the bids had been accepted, and the general contractor had indicated its intent to perform the work in-house with employees represented by unions who were not parties to the proceeding. Id. at 1150. Also distinguishable is Printing & Paper Trades Workers 520 (Cuneo Eastern Press), 168 NLRB 531, 532 (1967), where the Board declined to determine possible disputes over future work assignments. Here, as stated above, a general contractor has formally awarded disputed work to a subcontractor, and the sub- contractor has made a specific assignment of that work to a defined group of employees. of the agreement. The Iron Workers does not, however, offer any direct evidence to show that the Bricklayers did not intend its threat seriously. In the absence of such evidence, it is well settled that where a charged party has used language that on its face threatens economic action, the Board will find reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated.5 We therefore find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. Accord- ingly, we find that the dispute is properly before the Board for determination, and we deny the Iron Workers’ motion to quash the notice of hearing. 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 making the de- termination of this dispute. 1. Certifications and collective-bargaining agreements There is no evidence of any Board certifications con- cerning the employees involved in this dispute. As noted above, Cretex has a collective-bargaining agreement with the Bricklayers that encompasses precast concrete erection work. The agreement provides that Bricklayers are to perform “the erection, installation and remedial work concerning all precast, prestressed and prefabricated concrete building systems.” The Employer is not, and has never been, a signatory to an Iron Work- ers’ collective-bargaining agreement. Accordingly, we find that the factor of collective-bargaining agreements favors an award of the work in dispute to employees rep- resented by the Bricklayers. 5 See Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219, 220 (1984) (rejecting contention that a threat was a sham because its reali- zation would have involved violating a no-strike clause in the collec- tive-bargaining agreement between the employer and the charged un- ion); Lancaster Typographical Union No. 70, 325 NLRB 449, 450–451 (1998) (rejecting argument that the timing of a picketing threat showed that the threat was a sham). Compare Iron Workers Local 433 (Cres- cent Corp.), 277 NLRB 670, 673 fn. 6 (1985) (finding that union attor- ney’s threat to take job action did not constitute reasonable cause to believe Sec. 8(b)(4)(D) had been violated where the employer testified that the attorney said “[y]ou can have your magic words” before deliv- ering the threat). BRICKLAYERS (CRETEX CONSTRUCTION SERVICES) 1033 2. Employer preference and past practice Cretex prefers to assign the work to employees repre- sented by the Bricklayers. Cretex’s consistent past prac- tice has been to assign all precast erection work exclu- sively to the Bricklayers. Therefore, we find that these factors favor awarding the disputed work to employees represented by the Bricklayers. 3. Area and industry practice Both the Bricklayers and the Iron Workers offered evidence that employees represented by their respective unions have performed the disputed work nationally and at sites within the Chicago area. Thus, we find that this factor does not favor awarding the disputed work to em- ployees represented by either union. 4. Relative skill and experience Both the Bricklayers and the Iron Workers offered evidence that employees represented by their respective unions were qualified to do the work. Accordingly, we find that this factor does not favor awarding the disputed work to either group of employees. 5. Economy and efficiency of operations The Bricklayers offered evidence that, because the employees it represents are able to perform the grouting and caulking tasks involved in precast concrete erection, they are able to continue to work even when equipment failure interrupts the erection of panels. Cretex Vice President Heiman testified that, based on his personal observation of Iron Workers crews, employees repre- sented by the Iron Workers do not perform grouting and caulking and are therefore unable to work in the event of equipment failure. The Iron Workers do not dispute Heiman’s testimony in this regard. Accordingly, we find that this factor favors awarding the disputed work to em- ployees represented by the Bricklayers. 6. Interunion agreements The Iron Workers offered evidence of a 1962 agree- ment between the Iron Workers and Bricklayers interna- tional unions assigning structural precast concrete erec- tion work to employees represented by the Iron Workers. However, the Bricklayers offered uncontradicted evi- dence that the Bricklayers international repudiated the application of the 1962 agreement in the Chicago area in 1967, and that the 1962 agreement has not been followed in that area. Accordingly, we find that this factor does not favor awarding the disputed work to either group of employees. Conclusions After considering all of the relevant factors, we con- clude that employees represented by International Union of Bricklayers and Allied Craftworkers, AFL–CIO, are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference, employer past prac- tice, and economy and efficiency of operations. In mak- ing this determination, we are awarding the work to em- ployees represented by the Bricklayers, not to that Union or its members. Scope of the Award The Employer contends that the Board should issue a broad order with respect to the disputed work because disputes between the Iron Workers and Bricklayers con- cerning the erection and installation of precast concrete have been prevalent in the Chicago area and are likely to reoccur. 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. See, e.g., Plumbers Local 562 (Charles E. Jarrell), 329 NLRB 529 (1999). Accordingly, we shall limit the present determination to the work jurisdiction dispute that gave rise to these proceedings. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. Employees of Cretex Construction Services, Inc., rep- resented by International Union of Bricklayers and Al- lied Craftworkers, AFL–CIO, are entitled to perform the precast concrete erection work for an elevated parking structure and dedicated busway route at Midway Airport in Chicago, Illinois, on behalf of Cretex Construction Services, Inc.