Local No. 3

LOCAL NO. 3 International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 3, AFL-CIO and Spancrete Northeast, Inc. and La- borers' International Union of North America, Lo- cals 373 and 894, AFL-CIO. Case 6 CD 662 July 13, 1979 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MIMBIRS JINKINS AND PNEI.I.() This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Spancrete Northeast, Inc., herein called Spancrete, alleging that International Associ- ation of Bridge, Structural and Ornamental Iron Workers, Local Union No. 3, AFL CIO, herein called the Ironworkers, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activities with an object of forcing or requir- ing Spancrete to assign certain work to its members rather than to employees represented by Laborers' In- ternational Union of North America, Locals 373 and 894, AFL-CIO, herein called the Laborers. Pursuant to notice, a hearing was held before Hear- ing Officer Charles H. Saul on April 24, 1979. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. There- after, briefs were filed by the Ironworkers and Span- crete. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Spancrete is a New York corporation engaged in the manufacture, sale, and installation of precast, pre- stressed concrete building members, with its principal place of business in South Bethlehem, New York. It also operates other facilities in Rochester, New York, and Aurora, Ohio. It annually purchases goods and materials valued in excess of $50,000 from points out- side the State of New York. The parties stipulated, and we find, that Spancrete is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. 11 I AB()R ()R(,ANIZAII NS N\ )I \ 1I) The parties stipulated. and we find, that Iron Workers l.ocal Union No. 3 and l aborers ocals 373 and 894 are labor organizations within the meaning of Section 2(5) of the Act. Ill. 111: )ISK't'Ii A. Background arid/ FIlcrt (o/f t' Divpurc During the latter part of 1978, Spancrete subcon- tracted with Green. Frantz, and Associates for the installation of precast, prestressed concrete building members at the Monroeville Medical Arts Building in Monroeville, Pennsylvania. This work involves un- loading, erecting, setting in place. leveling. and align- ing the slabs and cutting, caulking, patching. and grouting them. Pursuant to its collective-bargaining agreement with the International Laborers Union and agree- ments thereunder with various locals of the Laborers, covering employees working at and out of its three plants, Spancrete assigned the work to employees rep- resented by the Laborers. In November 1978, Spancrete sent a crew from its Aurora, Ohio, plant to the jobsite to commence work on the five stages of work covered by the subcontract with Green, Frantz, and Associates for the sale and installation of concrete planks to form the floors and ceilings of the building. The planks were delivered to the jobsite on flatbed trailers, and a crane provided by Anthony Crane Rental and operated by a member of Operating Engineers Local 66 was there to provide the power to lift the planks from the trailers and set them in place in the structure. On January 9, 1979, the president of the Laborers International Union of North America received a let- ter from the Impartial Jurisdictional Disputes Board (IJDB), informing him that the president of the Inter- national Association of Bridge. Structural and Orna- mental Iron Workers had requested a job decision in a jurisdictional dispute between these two Unions re- garding the Spancrete work on the Monroeville proj- ect. On January 12, 1979, Spancrete sent a telegram to the IJDB stating that it had not stipulated directly or indirectly to the IJDB and that it would not recog- nize or be bound by any purported decision by it. At the hearing on this matter, counsel for the Laborers International Union referred to Spancrete's telegram and offered no position on the jurisdictional dispute, contending instead that the stipulation of Spancrete was necessary before the Laborers International 243 NLRB No. 81 DECISIONS OF NATIONA. LABOR RELATIONS BOARD Union would be bound by the procedures of the IJDB. On January 31, 1979, the IJDB wrote the par- ties that it had decided to award the work to the Iron- workers. On March , 1979, the Ironworkers picketed the construction site with a picket sign stating: Laborers refuse to abide by IJDB decision for setting precast concrete on this project. Iron- workers Local #3. As a result of this picketing, the power crane operator and employees of the contractor and other subcon- tractors at the site would not work, and Spancrete's work, therefore, was stopped. Spancrete's crew returned to the site on March 5. 1979, and, with the assistance of a crane and crane operator provided by Falcon Crane Service, contin- ued to install the concrete building members for the following 5 days. The Ironworkers' picketing contin- ued during this 5-day period, and no work was per- formed on the construction site aside from that en- gaged in by Spancrete. On March 16, 1979, an injunction was issued by a Federal district court en- joining this picketing, and there has been no picketing by the Ironworkers at the jobsite since that date. At the hearing conducted in the Federal district court prior to the issuance of the injunction, two of the persons who had engaged in the picketing de- scribed above testified that they established a picket line at the direction of their business agent and that its purpose was to support the Ironworkers' claim to Spancrete's work. B. The Work in Dispute The work in dispute is the installation of precast, prestressed concrete building nmembers at the Mon- roeville Medical Arts Building in Monroeville, Penn- sylvania. C. Contentions of the Parties Spancrete and the Laborers contend that the as- signment of the work of installing its present concrete planks to employees represented by the Laborers is justified on the basis of the Company's collective-bar- gaining agreements, both national and local, with the Laborers, its established practice of 17 years of in- stalling its products exclusively with laborers, and economy and efficiency of operations in the conduct of its business. Spancrete further contends that the Laborers is not bound by the decision of the IJDB, which awarded the work to the Ironworkers. The Ironworkers contends that it never made a de- mand for the work on this particular project to any representative of Spancrete, and that it does not dis- pute or intend to dispute the assignment of work made by Spancrete to the Laborers. Furthermore, it does not assert or claim that Spancrete was bound by any decision of the IJDB previously made. On the contrary, it argues that its actions at the Monroeville project consisted of picketing to inform the public of the Laborers' refusal to abide by the IJDB decision. At the hearing, the attorney for the Ironworkers stated that he had no objection to the National Labor Relations Board's awarding the Spancrete work on this project to the Laborers. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that (I) there is reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to (I), above, the record shows that the pres- ident of the International Association of Bridge, Structural and Ornamental Iron Workers claimed ju- risdiction over the work involved in the present pro- ceeding before the IJDB in January 1979. During the first 2 weeks in March of that year, Local 3 of the Ironworkers established pickets, as a result of which the operating engineer, who operated the power crane, and various other employees would not work, and Spancrete's work was stopped. Admissions by persons who had engaged in the picketing, as well as the underlying claim to this work by the Ironworkers before the IJDB, make it clear that the Union estab- lished pickets to support a claim to the work. Accord- ingly, we find that reasonable cause exists to believe that the Ironworkers violated Section 8(b)(4XD) of the Act.' With respect to (2), above, it is clear that the Board will not determine the merits of a jurisdictional dis- pute if the parties involved have agreed on a method of resolving such disputes. While the Ironworkers contends that the Laborers is bound by the decision of the IJDB, it does not contend that Spancrete has agreed to be bound by such awards by that particular I We reject Respondent's argument that it has never demanded the work involved in this proceeding. Although the legend on the picket sign was addressed to the Laborers' refusal to abide by an award by the IJDB. we will not view the picket sign legend in a vacuum. The picket sign, when viewed in the context of the events which preceded the picketing, clearly indicates that the Ironworkers was pressing the demand, first made before the IJDB with notice to Spancrete, that its members had jurisdiction over the work in- volved. As the Ironworkers has not disclaimed any intention to continue such picketing, and in fact has asserted that the picketing was not unlawful, we do not find that it has made an effective disclaimer of the work here in dispute. 468 Spancrete has also executed separate agreements with the various Laborers locals representing employ- ees at each of its facilities. These agreements cover the manufacture and installation of Spancrete's con- crete products. On the other hand, Spancrete has no agreement with the Ironworkers regarding the work in dispute. Thus, we find that the contracts fhvor awarding the disputed work to employees of Spancrete who are represented by the Laborers. 2. The Employer's preference, assignment, and past practice It has been Spancrete's practice to assign the instal- lation of its products to an erection crew typically consisting of three permanently based Spancrete em- ployees represented by the Laborers and additional employees hired locally for the particular job. The local employees are represented by the Laborers local with jurisdiction over the particular geographical area in which the job is located. Such practice is consistent with the specific provisions of the national agreement mentioned above, and Spancrete has expressed its satisfaction with this arrangement. In the instant case, the crew's permanent employees were represented by Laborers Local 894, while the three employees hired locally were represented by Laborers Local 373. The record shows that the only exception to Span- crete's practice of utilizing laborer crews has occurred in New York City, as the result of the Board's 1972 award of similar work to ironworkers.4 We note, how- ever, that the circumstances underlying the Board's determination in the New York City case are not pre- sent here inasmuch as, in that case, Spancrete had admittedly never completed a job in New York City with a crew of laborers: ironworkers had historically performed the disputed work in that area; and the Laborers locals with jurisdiction in New York City refused to supply Spancrete with the necessary per- sonnel because of a longstanding Building Trades Employer Association award in favor of ironworkers. In these circumstances, this one exception does not detract significantly from Spancrete's otherwise con- sistent practice. We conclude, therefore, that Span- crete's preference, assignment, and past practice mili- tate in favor of awarding the work here in dispute to employees represented by the Laborers. 3. Industry and area practice Leo Nazdin, the director ofjurisdiction for the La- borers International Union, testified that the work in 4 local Union No. 40, International Association of Bridge. Structural and Ornamental Iron Workers, AFL CIO (Spancrete Northeast, Inc.). 197 NLRB 822 (1972). tribunal. 2 On its part, Spancrete contends that it is neither directly nor indirectly a party to any agree- ment stipulating it to the IJDB or any other plan of voluntary settlement. Since there is no agreed-upon method for the voluntary adjustment of the dispute to which all the necessary parties to the dispute are bound, we find that this dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to and balancing all relevant fac- tors.' The following factors are relevant in making the determination of the dispute before us: I. Collective-bargaining agreements Laborers Locals 435 and 190 have been certified by the Board as collective-bargaining representatives of Spancrete's employees at its Rochester, New York, and Albany, New York, facilities, respectively. Nei- ther certification, however, makes specific reference to the crews which Spancrete uses to perform erection work such as the one here in dispute. Laborers Local 894 represents Spancrete's employees at its Aurora, Ohio, facility. Since it commenced doing business in 1963, how- ever, Spancrete has executed a national agreement with the International Laborers Union of North America, AFL-CIO, the most recent of which specif- ically covers "all field construction . . . work per- formed by the Employer." Additionally, that agree- ment provides that the covered work jurisdiction is that specified in article III, section (b), of the Labor- ers' constitution which, in turn, encompasses the work outlined in the Laborers' "Manual of Jurisdic- tion." That manual includes, within the Laborers' ju- risdiction, the following work: Where pre-stressed or pre-cast concrete slabs, walls or sections are used, all loading, unloading, stockpiling, hooking, setting, and barring into place of such slabs, walls, or sections. All mixing, handling, conveying, places, and spreading of grout for any purpose. 2 See Local 301, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO (Spancrete Northeast, Inc.), 235 NLRB 1222 (1978). where the Board found that the work jurisdiction provision in the current bargaining agreement between the Laborers International Union and Spancrete did not constitute an agreement upon a method for the volun- tary adjustment of the dispute therein. N. LR. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, A FL- CIO Columbia Broad- casting System], 364 U.S. 573 (1961); International Association of Machinists. Lodge No. 1743. AFL-CIO (J. A. Jones Construction Companyl, 135 NLRB 1402 (1962). I.OCAL NO. 3 469 DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD dispute has been undertaken by various construction firms and that they have assigned this work to be performed by crews composed of laborers, or laborers and bricklayers, in over 20 States in the United States, including Pennsylvania, as well as in various locations in Canada. The Ironworkers presented no evidence to rebut this evidence of industry practice. Spancrete has produced testimony showing that since it commenced doing business in 1963, 95 per- cent of the 50 million square feet of Spancrete (the trade name for the concrete plank) which it has pro- duced has been installed by crews of laborers under the arrangement described above. Of that total, over 4-1/2 million square feet have been produced and in- stalled with crews of laborers at over 100 construction sites in western Pennsylvania, the area where the Monroeville project is located. Thus, there is evidence of area and industry practice to support the Laborers' claim, and it is also clear that, in the areas where Spancrete operates, it has been its practice to assign the disputed work to employees represented by La- borers.5 Furthermore, Spancrete's share of the work in these areas is substantial. Accordingly, the industry and area practice favors the employees represented by the Laborers. 4. Skills, economy, and efficiency Spancrete employs permanent installation crews of laborers who are required to go through work orien- tation training and safety sessions in order to perform the disputed work effeciently and safely. Regarding the laborers hired locally to supplement the perma- nent crew, Spancrete tries whenever possible to hire local laborers whom it has employed before. As to the factors of efficiency and economy, Span- crete's vice president, Buckman, testified that a higher degree of work coordination and scheduling, as well as speed of erection, would be achieved if Spancrete's work assignment is upheld. In this respect, Spancrete points to the advantage of using a permanent crew of specialized workmen who are accustomed to handling its products and are familiar with the best tools and procedures to achieve the desired results. In contrast, Buckman stated that ironworkers are less familiar with Spancrete's products and that an award in favor of them would result in a less effective and more costly operation. Buckman testified that ironworkers would utilize more manpower to perform the same amount of work. From the foregoing, we conclude that the factors of efficiency and economy tend to favor the employees represented by the Laborers. The exception is New York City, discussed above. In considering indus- try practice, we have treated Spancrete's New York City practice as weigh- ing in favor of employees represented by the Ironworkers. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, we con- clude that Spancrete's employees who are represented by Laborers Locals 373 and 894 are entitled to per- torm the work here in dispute. We reach this conclu- sion on the basis of Spancrete's long-established prac- tice of assigning the work here in question to employees represented by the appropriate Laborers locals, the collective-bargaining agreements, industry and area practice, the relative economy and efficiency of operations, and Spancrete's preference. Accord- ingly, we shall determine the dispute by awarding the disputed work to Spancrete's employees represented by Laborers Locals 373 and 894, but not to any labor organization of which these employees are members. Scope of the Award Spancrete requests that the Board issue a broad work award on behalf of the Laborers to be appli- cable throughout the area in which Spancrete con- ducts business. Spancrete contends that such an order is necessary in order to avoid further jurisdictional work interruptions in the areas where it operates. In this respect, Spancrete claims that it has been the tar- get of jurisdictional disputes in every location in which it does business. In six instances, the jurisdic- tional disputes culminated in Board determinations under Section IO(k) of the Act. We note, however, that the Local herein was not a party to any of those proceedings. Spancrete has made similar requests in prior cases.6 However, "the fact that other unions, including affili- ates of the Ironworkers in other localities, have en- gaged in such unlawful conduct in the past, does not demonstrate a proclivity on the part of [these Locals] to engage in further unlawful conduct. Nor does [their] alleged interest in obtaining work similar to that in dispute here, as such work becomes available on future Spancrete jobs, demonstrate the likelihood that they will again resort to unlawful means to ob- tain it."7 Accordingly, we find that the issuance of the broad order sought herein by Spancrete is not war- ranted in this case. Therefore our present determina- ' Local 42, Bricklayers, Masons and Plasterers International Union of Amer- ica, AFL CIO (Spancrete Northeast, Inc.), 192 NLRB 64 (1971); Local 10, Bricklayers, Masons and Plasterers International Union of America, AFL CIO (Spancrele Northeast, Inc.), 191 NLRB 638 (1971); Local No 6, Interna- tional Association of Bridge, Structural & Ornamental Ironworkers (Spancrete Northeast, Inc.), 196 NLRB 1182 (1972); Local Union Number 417, Interna- tional Association of Bridge, Structural and Ornamental Ironworkers (Span- crete Northeast, Inc.), 219 NLRB 986 (1975); Local 301, International Associ- ation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Spancrete Northeast, Inc.), 235 NLRB 1222 (1978). 7 Local 6, Ironworkers, supra at 1 185; Local 417, Ironworkers, supra at 989. 470 LOCAL NO. 3 tion is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: I. Employees employed by Spancrete Northeast, Inc., who are currently represented by Laborers In- ternational Union of North America, Locals 373 and 894, AFL-CIO, are entitled to perform the work of the installation of precast, prestressed concrete build- ing members at the Monroeville Medical Arts Build- ing in Monroeville, Pennsylvania. 471 2. International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 3. AFL CIO, is not, and has not been, entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to award the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Bridge, Structural and Ornamental Iron Workers, Local Union No. 3, AFL CIO, shall notify the Regional Director for Region 6. in writing, whether it will or will not refrain from forcing or re- quiring Spancrete Northeast, Inc., by means pro- scribed by Section 8(b)(4)(D) of the Act, to award the work in dispute to its members rather than to employ- ees represented by Laborers International Union of North America, Locals 373 and 894, AFL CIO.