Local Union No. 272, Int'l Assn. of Bridge, Etc.

LOCAL UNION NO. 272, INT'L ASSN. OF BRIDGE, ETC. 269 the area and to the general practice in the industry, and it appears that brewers may perform the disputed work more efficiently for the Employer than may the machinists. We shall, accordingly, determine the existing jurisdictional dispute by deciding that brewers, rather than machinists, are entitled to the work in dispute. In making this determination, we are assigning the disputed work to the employees of the Employer who are represented by the Brewers but not to that Union or its members. 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute. Brewers employed by P. Ballantine & Sons, who are represented by Local 4, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, are entitled to perform the work of installing the Ballantine Easy Tap in the heads of metal beer bar- rels in the Employer's plant in Newark, New Jersey. CHAIRMAN MCCULLOCH took no part in the consideration of the above Decision and Determination of Dispute. Local Union No. 272, International Association of Bridge , Struc- tural and Ornamental Iron Workers, AFL-CIO and Prestress Erectors, Inc. and Carpenters' District Council of Miami, Florida and Vicinity, AFL-CIO. Case No. 12-CD-52. April 29, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed on July 31, 1964, and an amended charge filed on August 31,1964, by Prestress Erectors, Inc., herein called Prestress or the Employer. The charges alleged that Local Union No. 272, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, herein called the Iron Workers, violated Section 8(b) (4) (i) and (ii) (D) of the Act. On August 14, 1964, the Acting Regional Director for Region 12 issued a notice of hearing, which was later amended on September 1 and 3. The hearing held in Miami, Florida, before Hearing Officer Obediah R. Miller, began on September 14 and ended on October 22. 152 NLRB No. 21. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 14, the Carpenters' District Council of Miami,. Florida and Vicinity, AFL-CIO, herein called the Carpenters, intervened.,- The Employer, the Iron Workers, and the Carpenters' participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the: issues. The rulings of the Hearing Officer are free from prejudicial, error and are hereby affirmed. Upon the entire record in the case, the Board 2 makes the following findings : 1. The business of the Employer Prestress is a Florida corporation with its principal office in North Miami, Florida. It is engaged in the delivery and erection of precast' concrete building material as subcontractor for precast manufacturers 3' In the 12 months preceding the hearing, the Employer performed services valued at more than $50,000 for a number of Florida precast manufacturers, including Concrete Structures, Inc., of North Miami., Concrete Structures, Inc., annually purchases more than $50,000 worth of materials directly from suppliers located outside the State of Flor-' ida. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein .4 2. The labor organizations involved It was stipulated, and we find, that the Iron Workers, the Carpenters, and the Bricklayers are labor organizations within the meaning of Section 2 (5) of the Act. 3. The dispute A. Background For many years, the Carpenters and Iron Workers have been in dis- pute over the assignment of work involving the installation of precast concrete. "Precast" is a broad term denoting any concrete item cast at a place other than its final position in the structure. Involved here are only those precast items heavy enough to require power equipment to move them into place. The items range from 4 by 5 feet lattice work sections to single or double T sections 100 feet long, 8 feet wide, weighing 18 to 20 tons. Precast concrete may also be "prestressed";' 'On September 28, 1964 , the Bricklayers , Masons and Plasterers, Local Union No 7, AFL-CIO (herein called the Bricklayers), intervened to protect its work jurisdiction 2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Fanning, Brown, and Jenkins] 8 Although the Employer has worked on projects throughout the State of Florida, the the major portion of its jobs are located in Dade and Broward Counties In the 12 months preceding the hearing , an estimated 70 to 85 percent of its jobs were in these two counties 4 Siemons Matting Service, 122 NLRB 81, 85 LOCAL UNION NO. 272, INT'L ASSN. OF BRIDGE, ETC. 271 i.e., reinforced with tensioned wire strand to extend load carrying capacities. Precast products may be classified according to the shape of their cross-section; e.g., rectangular sections (flat slabs), square, circular, channel, curved, or folded sections, perforated sections (as in grille work or window frames), solid sections, cored sections, I' see-_ tions, single T (Lmtee) or. double T sections; and by their specific function or position in a particular structure; e.g., exterior wall panels, window frames, spandrel panels, floor or roof members, columns, arches, joists, sun and weather screens, and cantilevered sections. A, single cross-section type of precast is often capable of a variety of building uses.5 Another somewhat theoretical distinction can be drawn between "structural" (load bearing) and "architectural", (decorative) functions of precast.6 As performed at Employer jobsites, the installation ofprecast con- crete consists of planning an orderly sequence of work, layout out and measuring the placement of the item, "rigging" 7 and aligning the item into the correct position, shoring, bracing, and making temporary connections, welding or bolting the item permanently into place, burn- ing off rigging accessories, and making any necessary final adjust- ments. The rigging required on most of the Employer's jobs involves no more than placing the crane in the right spot, putting hooks through metal loops cast into the precast item, and directing the move- ment of the item by hand signals to the crane operator. In special situations, added rigging devices (such as a "come-along" or an A- frame ) are needed to move the item into the final position.8 The weld- ing work is done by a State-licensed welder, usually a carpenter but occasionally a bricklayer. In the late 1950's and early 1960's representatives of the Iron Work- ers and Carpenters attempted on several occasions to reach an agree- ment on precast installation work in southern Florida.9 But no last- ing settlement has ever been consummated. The National Joint Board for Settlement of Jurisdictional Disputes, hereafter called the Joint Board, was notified of several disputed jobs, but only referred the issues to the respective International unions for settlement. Appar- ently, the Internationals were unable to reach an agreement on area 5 The various functional uses may require differences in the positioning of the rein- forcing strands or in the type of finish to be applied G The president of Prestress, George A. Cooney, and Bert Hunter, president of Concrete Structures , Inc , both testified that the trend in the precast industry is to combine struc- tural and architectural purposes in the same piece , thus diminishing the practical significance of the distinction. ' Rigging is defined generally as moving an object to another elevation or to a different position in the same plane with the aid of a crane or other mechanical device. 8In the past year the Employer had only two jobs that required such additional equipment 9 The use of precast in building construction in the United States is a relatively recent development, dating from the early 1950's 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice or other criteria for resolving the dispute, and the Carpenters and Iron Workers have continued to press their competing claims in southern Florida to the present time. The Employer began operations in March-April 1961. For its first job, the Employer assigned the precast erection work to employees represented by the Iron Workers. Prestress president, George A. Cooney, testified that he selected ironworkers because he had a "certain attachment for the ironworkers craft," 10 and because others on the job had asked him to use ironworkers. However, he had difficulty in getting the ironworkers to complete the welding on this job, and, on his next project, Cooney selected employees represented by the Car- penters. He was satisfied with the carpenters' performance and there- after developed a decided preference for the carpenters. The Em- ployer then used carpenters on most of its jobs, but it hired ironworkers for about 10 jobs during 1961-63, largely because of pressures from the Iron Workers. Since February 1963, the Employer has utilized carpenters exclusively for precast erection work. On March 25, 1963,11 the Employer signed an agreement with the Carpenters which recog- nized the Union as "the collective bargaining representative of car- penters engaged in the work of the Employer wherever situated in the area of work performed by the employer," and bound the Employer to pay its carpenters "in accordance with the scale of wages and bene- fits negotiated between the Union and the Associated General Con- tractors of America and the South Florida Home Builders Associa- tion." This agreement also stipulated that "the work of erecting, rig- ging and/or welding on the site of any construction job, of any precast shape used or handled by the Employer shall be assigned to qualified carpenters." 12 B. The instant disputes During the period June through August 1964, Prestress started work on four jobs which led to the instant work disputes. These four jobs were the University of Miami Student Union Building, the Dade 10 Cooney had been a member of Iron Workers Local 45 (New Jersey ) for 10 years. "Prior to this date, the Employer had not contractually recognized the Carpenters, but apparently had abided by the terms of applicable Carpenters ' agreements whenever it employed carpenters. It is the Employer's stipulated practice to employ bricklayers exclusively for "cutting, fitting, bending, pointing, caulking, grouting, and installation of gaskets ," and, in com- posite crews with carpenters, for the "rigging, plumbing, aligning, leveling and securing precast items." This division of work is substantially the same as that provided for in an agreement between the Iron Workers and Bricklayers International unions, the terms of which are acceptable to the Carpenters vis-a-vis the Bricklayers. "Grouting" is the process of filling in openings between the installed precast items with cement and sand , or with various chemical , plastic, or rubber compounds. On June 28 , 1963, the Employer signed a recently negotiated Carpenters -AGC and Home Builders agreement. President Cooney testified that this latter agreement simply "complemented" the March 25 agreement which continued to be in effect Cooney also testified that , although the June 28 agreement was limited to Dade County, the Employer did in fact abide by the terms of its agreements with the Carpenters when working on projects outside Dade County. LOCAL UNION NO. 272, INT'L ASSN. OF BRIDGE, ETC. 273 County Junior College Learning Resources Lab, the Pompano Beach Incinerator No. 2, and the Family Finance Building. Incinerator No. 2 is located in Broward County, the other three jobs are in Dade County. On June 30, Prestress' carpenters began installing vertical flat slabs, grille work, and window frames in the student union building. That same day, or the next, pickets appeared on the jobsite with signs stat- ing "Prestress Erectors pays substandard wages to employees doing Ironworkers work, Local 272." Employees represented by unions other than the Carpenters left the job. In a July 1 telegram, Prestress President Cooney notified the Joint Board of the picketing and requested that it "use [its] good offices to resolve [the] issue." On July 2, Iron Workers International Representative John Walsh was contacted, and on the following day the picketing ceased.13 Represent- atives of the Employer, other contractors, and the unions involved met on July 6 and 14 and on August 4 to discuss the dispute. Cooney and Arne Jacobsen, superintendent for the general contractor, testified that, at these meetings , Walsh claimed the precast installation work for the Iron Workers. According to Cooney, Walsh said that the ironworkers would not work and the project would not be completed unless the Employer's precast work was given to ironworkers. The record also contains evidence of Iron Workers picketing on August 25 and 26 at the Dade County Junior College job where the Employer was installing I joists, wall panels (flat slabs and channel sections ), and sunscreens . The project manager for the general con- tractor testified that a picket appeared on August 25 and 26 with a sign reading "Prestress Erectors pays substandard wages for men doing Iron Workers' work," and that ironworkers employed by other contractors on the job refused to work on these 2 days and on certain dates in September when the Employer was scheduled to install wall panels. At the Pompano Beach Incinerator, Prestress began to erect double T sections for a roofing system on August 25. A representative of the general contractor testified that pickets appeared on August 25 and remained for 2 or 3 days ; that an Iron Workers representative stated the picketing was to protest the carpenters doing work "awarded" to the ironworkers ; 14 and that Prestress' carpenters and the general contractor's laborers were the only employees who con- tinued to work during the picketing. '$ Cooney later received a copy of the Joint Board' s July 1 telegram to the Iron Workers' general president requesting the removal of the pickets and the adjustment of "any continuing jurisdictional disputes directly." But he received no further com- munication from the Joint Board. 14 According to a Prestress carpenter employed on the incinerator job, the Iron Work- ers representative said the reason for the picketing was "The carpenters were doing .our work." 7 89-730-66-vol. 152-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer began installing folded plate and flat slab sections at the Family Finance job on August 27 or 28. The job superintendent testified that ironworkers and brick masons walked off the job a day or two later. 4. Applicability of the statute At the hearing, the Iron Workers urged that the Board should not proceed to a Section 10(k) determination on grounds that : (1) The Employer's July 1 telegram constituted a submission of the dispute to the Joint Board, and (2) there was insufficient evidence to find probable cause that Section 8(b) (4) (D) had been violated in respect to a particular work assignment.-' The Employer contends, however, that it was not bound by any contract or stipulation to submit juris- dictional disputes to the Joint Board; and it asserts in this connection that the July 1 telegram did not, either expressly or impliedly, author- ize the Joint Board to make a binding settlement of the dispute. President Cooney testified that the reason for the telegram was to notify the Joint Board of the picketing and to ask for whatever aid it could give, but that he did not intend the telegram to bind him to the Joint Board's settlement procedures. On being told at the hear- ing, by the counsel for the Iron Workers, of a report that the Joint Board had taken jurisdiction of the dispute, Cooney telephoned the Joint Board on September 15 and advised it that he did not consider the telegram to be a submission, and did not want the Joint Board to take the dispute. In these circumstances, including the fact that the Joint Board has not taken any action other than direct the Iron Work- ers' general president to resolve any jurisdictional disputes with the Carpenters, we find no satisfactory evidence that the parties have either adjusted or agreed upon methods for the voluntary adjustment of the dispute.16 We are also satisfied that there is reasonable cause to believe that the Iron Workers was engaging in conduct violative of Section 8 (b) (4) (D) herein. Thus, there is evidence of picketing by Iron Workers at jobsites which succeeded in inducing a work stoppage among em- ployees on the project. The testimony is also sufficient to show that the object of the picketing was to compel Prestress to assign the precast installation work on the project to ironworkers, rather than to car- penters. The fact that the Iron Workers did not precisely delimit the scope of their jurisdictional claim in their picket signs and statements to others does not negate the existence of an active dispute over "par- 16 Counsel for the Iron workers admitted that there was evidence of "jurisdictional" or work assignment picketing at the student union and incinerator No. 2 jobs. 16 See International Union of Operating Engineers, Local 66, AFL-CIO ( Frank P. Badolato & Son), 135 NLRB 1392, 1395-1396. LOCAL UNION NO. 272, INT'L ASSN. OF BRIDGE, ETC. 275 titular work." 17 Clearly, there was work on these projects which was being performed by carpenters and which the Iron Workers claimed for their members. The use of picketing to force a reassignment of this work falls precisely within the proscription of Section 8 (b) (4) (D). Thus, a work dispute is properly before the Board under Section 10 (k) of the Act. 5. Contentions of the parties The Iron Workers' claim to the work is based primarily on area practice, a functional similarity between precast and metal building materials traditionally installed by ironworkers, and the skills pos- sessed by the ironworker craft. It asserts that the industry practice in Broward County is to use ironworkers for the installation of all precast items; 18 and that the Dade County practice favors the iron- workers in respect to wall panels and sunscreens.19 The Carpenters relies on the Employer's past practice, a current contractual assign- ment, the fact that precast eliminates building wooden forms for cast- in-place concrete which is traditionally carpenters' work, and on the skills possessed by the carpenter craft. Neither Union relies on an award of the Joint Board or on a NLRB certification or order. The Employer expresses a preference for the carpenters, contends that they are more efficient, and desires to continue its past and current assign- ment. The Employer is strongly opposed to any division of precast work between the two Unions. 6. 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 various relevant factors, and the Board has held that its determination in jurisdictional dispute cases is an act of judgment based upon common- sense and experience in balancing such factors 2° 17 The Iron Workers and the Carpenters have used different terms and concepts to define the nature and extent of their respective work claims . However, this definitional disagreement cannot alter the fact that at some level or area their jurisdictional claims did overlap and conflict. 18Iron Workers counsel stated at the hearing that, had the Employer been installing all types of precast items on the incinerator No. 2 job, the Iron workers would have claimed all such work on the basis of this asserted area practice 18 According to Iron Worker Business Representative Raymond H Cramer , "the work has been up for grabs" in the Dade County area and "everybody has gotten their best hold." The Iron Workers apparently defines "wall panel" as any section placed in the vertical to enclose the building , including flat slabs , channel sections , grille work, and window sections ( if the open space accounts for less than 50 percent of the total area) a'International Association of Machinists , Lodge No, 1743 , AFL-CIO ( J. A. Jones Constiuctxon Company ), 135 NLRB 1402. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Work and skill involved Precast concrete can be said to take the place of both metal building materials and wood concrete forms. Both Unions would thus appear to have equally justifiable claims to precast installation work on the basis of functional substitution and traditional craft jurisdiction. The skills required for precast installation also appear to be evenly bal- anced between the two crafts. The ironworkers seem to be more quali- fied in rigging heavy items because of their experience and training in the erection of structural steel and metal wall panels. On the other hand, the Employer's rigging is mostly of a simple nature; and the carpenters seem to have an edge in planning, measuring, and aligning the items into position. Both Unions have members who are qualified welders. And both have extensive apprenticeship programs which are supplemented by on-the-job training. It appears that the carpenters and the ironworkers are both competent and equally qualified to do the disputed precast installation work.21 B. Area practice There is evidence of industry practice in Dade and Broward Coun- ties which appears to favor both Unions 22 The Iron Workers intro- duced considerable evidence of past and present assignments of pre- cast work to ironworkers. The Carpenters also presented evidence showing that carpenters have received a substantial share of the pre- cast work in the two counties. President Cooney estimated that in 1963 the Employer, using carpenters, handled at least 75 to 85 percent of all the precast installed in the Dade County area. C. The Employer's past practice and contractual assignment Ever since its first job, the Employer has consistently assigned its precast work to the carpenters ; only when faced with Iron Workers pressures has it employed ironworkers. The Employer's March 25 agreement with the Carpenters expressly provides for the assignment of the work to the carpenter craft. The Employer's past practice and contractual assignment thus favor an award to the carpenters. D. Efficiency and economy of operation In support of his definite preference for carpenters, President Cooney cited their greater care in handling the precast items and their more efficient planning of work sequences. According to Cooney, car- penters have a greater appreciation for precast concrete's relatively The skills required are essentially the same regardless of the shape or function of of the particular precast item. The record is inadequate to determine what the area practice is outside these two counties Nor are we able to discern a clear-cut breakdown of area practice according to shape or function of the precast items within Dade and Broward Counties. LOCAL UNION NO. 2 7 2, INT'L ASSN. OF BRIDGE, ETC. 277 low tensile strength which makes it somewhat more susceptible to chipping and breakage. Cooney stated that he experienced less dam- age to precast items with carpenters, and that carpenters made for a generally smoother, more efficient operation with resulting reductions in labor and equipment costs. Cooney also strongly expressed his belief that any division of precast work between carpenters and iron- workers, based on either shape or function of the precast item, would introduce delay and confusion into the Employer's operation. 7. Conclusions as to the merits of the dispute Weighing these relevant factors, we believe that, on balance, the employees represented by the Carpenters are entitled to the work in dispute. We rely primarily on the fact that the Employer has con- sistently awarded the work to the carpenters and contractually assigned the work to them in the March 1963 agreement; that the carpenters are sufficiently skilled to perform the work and have performed it to the satisfaction of the Employer who desires to continue using them; and that the use of carpenters makes for an efficient operation. Accord- ingly, we shall determine the jurisdictional dispute by deciding that employees represented by the Carpenters, rather than those represented by the Iron Workers, are entitled to the work in dispute. In making this determination, we are assigning the disputed work to the employ- ees of Prestress who are represented by the Carpenters, but not to that Union or its members. 8. Scope of the determination The Iron Workers contends that the work in dispute is only precisely that which was being performed at the time of the picketing herein, and would limit the scope of the award accordingly. However, the record before us makes it clear that the dispute between the Unions cannot be so narrowly defined and that, in fact, a dispute between them exists over the erection and installation of precast items in gen- eral. Accordingly, we shall not restrict the scope of the determination to the particular disputes which gave rise to this proceeding. We hold that the work in dispute subject to our award is the erection and installation of all precast concrete items performed by the Employer in its building construction work within Dade and Broward Counties, Florida 23 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute. za This definition is subject to the division of work agreed upon at the hearing between the Carpenters and the Bricklayers. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Employees of Prestress Erectors, Inc., currently represented by the Carpenters' District Council of Miami, Florida and Vicinity, AFL-CIO, are entitled to perform the following work: Erecting and installing all precast concrete items performed by Prestress Erectors, Inc., in its building construction work within Dade and Broward Counties, Florida. 2. Local Union No. 272, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, is not entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require the Employer to assign the above work to ironworkers who are represented by it. 3. Within 10 days from the date of the Decision and Determination of Dispute, Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, shall notify the Regional Director for Region 12, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed in Sec- tion 8 (b) (4) (D), to assign the work in dispute to ironworkers rather than to carpenters. Local No. 2 of Detroit , Bricklayers, Masons, and Plasterers In- ternational Union of America, AFL-C10 1 and Decora, Inc. .Case No. 7-CD-116. April 29,1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National Labor Relations Act, following the filing of charges by Decora, Inc. (herein called the Employer) alleging that Local No. 2 of Detroit, Brick- layers, Masons and Plasterers International Union of Amercia, AFL- CIO (herein called Local No. 2), had violated Section 8(b) (4) (D) of the Act. The charge alleges, in substance, that Local No. 2 threatened, restrained, and coerced the Employer with an object of forcing or requiring the Employer to assign particular work to employees repre- sented by Local No. 2 rather than to employees who were members of, and represented by, Local No. 32, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO (herein called Local No. 32). Thereafter, a duly scheduled hearing was held before Hearing Officer Alfred J. Morad, on November 12 and 13, 1964. All parties 2 appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence The full name of Local No . 2 appears as stipulated by the parties at the hearing. a Although a timely notice of hearing was issued to Local No. 32, its representatives did not appear at the hearing . However, members of Local No . 32 who were employed by Decora, Inc., and to whom the Employer had assigned the work, appeared and were represented by the Employer 's counsel. 152 NLRB No. 17.