Iron Workers Local No. 563

IRON WORKERS LOCAL NO. 563 1105 Iron Workers Local No. 563, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Spancrete Midwest Com- pany and Bricklayers, Cement Block , Stone and Marble Masons, Pointers, Cleaners and Caulkers Union No. 2 of Minnesota and Construction and General Laborers Local 563, AFL-CIO. Case 18-CD-80 June 25, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, MCCULLOCH, AND JENKINS is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find , that Iron Workers, Bricklayers, Cement Block , Stone and Marble Masons, Pointers, Cleaners and Caulkers Union No . 2 of Minnesota, herein called Bricklayers ; and Construction and General Laborers Local 563, AFL-CIO, herein called Laborers, are labor organizations within the mean- ing of Section 2(5) of the Act. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Spancrete Midwest Company alleging in substance that Iron Workers Local No. 563, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO, herein called Iron Workers, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Ken- neth W. Haan on June 3 and 4, 1969. All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing on the issues. Thereafter, Spancrete Midwest Com- pany, herein called the Employer or Spancrete, and Iron Workers filed briefs Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Spancrete Midwest Company, a Minnesota corporation with headquar- ters in Osseo, Minnesota, is engaged in the sale and erection of prestressed concrete products; that dur- ing the calendar year 1968 it purchased, fiom points outside the State of Minnesota, steel and ce- ment valued in excess of $400,000; and that the value of the contracts entered into by Spancrete for the sale and installation of its products at the three construction sites here in issue exceeds $50,000. The parties stipulated, and we find, that Spancrete 183 NLRB No. 112 III. THE DISPUTE A. Background and Facts of the Dispute At various times between August 1, 1968, and January 14, 1969, Spancrete obtained contracts for the sale and installation of its concrete products at several construction sites in Duluth, Minnesota, and Superior, Wisconsin. The first, with Kranz-Ganley Company, the general contractor, called for the in- stallation of prestressed concrete plank to be used in the construction of a new post office at Duluth. Another agreement was negotiated with J. R. Jen- sen & Son, Inc., which involved the performance of similar work on the Midcontinent Warehouse, otherwise known as the Duluth port authority job. The third and last contract with which we are here concerned was let by Lakehead Constructors, Inc., and involved the installation of certain concrete materials on the roof of a new addition to the Rus- sell Creamery at Superior, Wisconsin. On February 18, 1969, Byron (Red) Rawn, Iron Workers business representative, telephoned Con- rad Bauer, Spancrete's erection manager, and requested the latter to assign several ironworkers to the Spancrete job at the Duluth post office. Bauer rejected this request, stating that the agreements his Company had negotiated with Bricklayers and Laborers required the assignment of the specific work sought by Rawn to employees represented by those unions. On the following day, three men ap- peared at the post office site where Jerry Akstetter, a precast mason and working foreman for Spancrete, was engaged in certain preparatory work in connection with the installation of the prestressed concrete. One of the men, whose identi- ty is unknown, asked if Spancrete was going to hire any ironworkers to perform the disputed work. He threatened to use force to obtain the work if neces- sary. The others, one of whom was subsequently identified as Les Schuman, a member of the Iron 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers, took no part in this discussion . Following this confrontation , Akstetter called David Hanson, Spancrete 's vice president and general manager Hanson instructed Akstetter to disregard the in- cident and continue to work . However, activity ceased shortly thereafter when a group gathered around the Spancrete crane used to hoist concrete slabs into position , making progress impossible. About a dozen men comprised this group, one of whom , Les Schuman , declared , according to Ak- stetter : " He didn 't care how big I was , and my size didn 't mean anything and not to let my gray hair fool you." On the same day, Akstetter was told by an unnamed individual employed at the project that unless he, Akstetter, put ironworkers on the Spancrete job, ironworkers employed by the general contractor would leave the project. The same day , having been refused "permission" to un- load materials, Akstetter dispatched the Spancrete crane and three truckloads of Spancrete products to the Company 's headquarters at Osseo, Min- nesota. Akstetter and the laborer assisting him also left the site. Thereafter on March 10, 1969, Ak- stetter returned to the post office job with a Spancrete laborer who was assigned to perform cer- tain welding work . On that occasion , Business Representative Rawn claimed the welding work for the Iron Workers in a telephone conversation with Hanson . Concerned about the delay, Kranz -Ganley ultimately assigned two of its own employees, mem- bers of the Iron Workers , to perform the disputed work, the cost being borne by Spancrete. On February 20, 1969, Akstetter arrived at the Duluth port authority project to install Spancrete plank. The Jensen Company provided several work- ers to assist Akstetter. Business Representative Rawn appeared at the site , claimed the work and, according to Keith Jensen , president of the Jensen Company, threatened to pull his other ironworkers off the job in the event his claim was not honored. Jensen testified that they were unable to proceed with the Spancrete installation that day as a result of the pressure exerted by Rawn. Akstetter left the site. Thereafter , Jensen used a composite crew of his own employees , including a carpenter , an iron- worker and two laborers to perform the disputed work. On February 27, 1969, Akstetter and another Spancrete employee were dispatched to the Russell Creamery at Superior, Wisconsin, to perform work under the subcontract agreement . He was observed there by Rawn who subsequently visited the office of Floyd Bernard, vice president of Lakehead Con- structors, the general contractor on the project. Bernard testified that Rawn told him area practice required the use of ironworkers , and that if Bernard did not put an ironworker on the job Rawn would have to shut it down . Bernard replied that he would just have to go ahead and do it . He then terminated the conversation . The record indicates that the Spancrete crew finished its work on the project and departed that day. B. The Work in Dispute The parties are in general agreement that the work in dispute involves the erection of prestressed concrete slabs and beams , including the rigging, signaling, and welding of such parts, and all other related phases of the concrete unit erection work.' Iron Workers limits its claim to the rigging , signal- ing, and welding tasks involved in such work , essen- tially the same position it took in the Brainerd, Minnesota, dispute ( fn. 1, supra ). Specifically, Iron Workers claims that at least one ironworker should be assigned to any Spancrete crew engaged in the installation of the prestressed concrete products here involved. C. Contentions of the Parties Spancrete Midwest Company contends that the controversy in this case is merely a continuation of the Brainerd, Minnesota, dispute, which the Board considered and determined in its favor in Spancrete Midwest Company, 175 NLRB 260, and that the award rendered in that case is controlling on all aspects of the work here in question . Spancrete also contends that the unlawful conduct alleged herein constitutes the fulfillment of threats made by Iron Workers in the course of the Brainerd dispute, and that such Iron Workers conduct is widespread and will continue in the absence of a broad work award issued by the Board. Bricklayers and Laborers support the position taken by Spancrete. Iron Workers claims that it is in compliance with the Board 's earlier Decision and Determination of Dispute ; that the alleged unlawful conduct here in question occurred before the issuance of the afore- mentioned Decision ; and that, in any event, the hearing in this case was unfairly expanded to in- clude allegations of unlawful conduct at projects which were not mentioned in the charge filed herein. Alternatively, Iron Workers contends that reconsideration of the factors previously weighed ' See Spancrete Midwest Company, 175 NLRB 260, for a detailed description of the aforementioned work IRON WORKERS LOCAL NO. 563 1107 by the Board, including employees' skills and indus- try and area practice, compels the assignment of the work here in dispute to the employees it represents. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. In this respect, Iron Workers urges that the Board, in determining the sufficiency of evidence tending to show unlawful conduct, over- look the incidents which are alleged to have oc- curred at the Duluth port authority and Russell Creamery projects because no mention of these projects was made in the charge filed by Spancrete. We disagree. Although the only location mentioned in the aforementioned charge was the post office jobsite at Duluth, the Regional Director's petition for an injunction under Section 10(1) of the Act2 contained specific reference to misconduct at all three projects. Further, all three projects are en- compassed within the settlement stipulation which resulted from court proceedings in connection with that petition, and the stipulation itself preceded by several months the hearing held in this case. In these circumstances, we cannot find that Iron Workers was either surprised or prejudiced by the admission of evidence pertaining to conduct al- legedly occurring at all the projects here involved. Further, we find that the incidents which are al- leged to have occurred at the port authority and the Russell Creamery projects were, as in the case of the post office project, fully explored at the hear- ing, at which time all parties had full opportunity to ascertain the facts.' Accordingly, we shall consider evidence of unlawful conduct at all three projects in our determination herein. On the facts referred to above, we find reason to believe that a violation of Section 8(b)(4)(D) has occurred. Iron Workers also contends that a voluntary method of adjustment of the dispute here involved is readily available to the parties. The record shows, however, that Spancrete is bound to submit disputes to the National Joint Board for the Settle- ment of Jurisdictional Disputes only with respect to the post office project. Neither Spancrete nor Bricklayers nor Laborers has agreed to any method of dispute resolution at the other projects here in- volved. Although the agreement of all parties upon a method for the voluntary adjustment of the dispute at one of the projects might warrant the quashing of the notice of hearing as to it under Sec- tion 10(k) and leave the resolution of it there to the voluntary processes selected by the parties, we find that there is no agreed-upon method for the adjust- ment of this basic dispute at all three projects in- volved. Accordingly, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. The Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience in the weighing of these factors. We have previously con- sidered the following factors to be relevant to a determination of the dispute here involved.' They are in all essential respects relevant and unchanged in the case now before us. 1. Collective-bargaining agreements Spancrete's contracts with Bricklayers and Laborers were scheduled to terminate on May 1, 1969. However, all parties to these contracts have agreed to carry over intact the language previously considered by the Board in its earlier determination. We find that these contractual provisions favor an award to employees represented by Bricklayers and Laborers. 2. Other factors No change in employer or area practice has been shown to have occurred since our earlier decision, wherein we held that such factors favor assignment of the work here in question to Spancrete's regular employees who are represented by Bricklayers and Laborers.' Nevertheless, Iron Workers continues to assert that other factors, such as skill, safety, effi- ciency, and economy, favor the assignment of disputed work to the employees it represents. In this respect, Donald Frye, an Iron Workers foreman for the general contractor on the post office pro- ject, testified that on one occasion a crew member 2 Clarence A Meter v Iron Workers Local 563, Civil No 5-69-18 (D -C , Minn ) ' In this respect we note that Iron Workers did not seek a continuance of the hearing to avoid whatever prejudice it now claims 4 Spancrete Midwest Company, supra " Brainerd , Minnesota, is included within the area referred to herein as the Duluth , Minnesota, and the Superior, Wisconsin, area 427-258 O-LT - 74 - 71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed by Spancrete was unable to work because he was intoxicated and was sent away from the project. Frye also testified that a mistake at- tributable to Akstetter, Spancrete's installation foreman, resulted in concrete planks being "laid the wrong way" and that some welds had to be done over. However, neither the foregoing testimony relating to a single project, nor the one instance cited by Iron Workers when laborers em- ployed by a general contractor assisted Akstetter, warrants a departure from our original finding that, whereas factors of skill and safety do not favor either group of employees, efficiency and economy favor the continued performance of the disputed work by Spancrete's employees. 3. Conclusions as to the merits of the dispute From the foregoing, it is clear that the same fac- tors which favored the assignment of disputed work at Brainerd are equally applicable with respect to the projects here in question. Accordingly, we shall, as in the earlier case, award this work to Spancrete's regular employees who are represented by Bricklayers and Laborers. In making this deter- mination, we award the work to the employees of Spancrete who are currently represented by Bricklayers and Laborers Unions, but not to those Unions or their members. Scope of the Award Spancrete is here, as in the earlier proceeding, requesting a broad work award by the Board on be- half of its employees, contending that such an award is necessary in order to avoid further disrup- tions at its construction sites. Iron Workers con- tends that a broad award is not appropriate in the circumstances of this case. In this respect they point to the fact that no unlawful conduct is alleged to have occurred at any of the projects here in- volved after the Board issued its Decision and Determination of Dispute in the Brainerd case. The record before us, nevertheless, demonstrates that the work in dispute has been a continuous source of controversy in the Duluth, Minnesota, and the Su- perior, Wisconsin, area, and that other similar disputes may occur in the future. Therefore, we shall not restrict the scope of our determination herein to the specific jobs giving the rise to this proceeding. Rather, our determination in this case shall apply to all similar disputed work performed in the Duluth, Minnesota, and the Superior, Wisconsin, area by Spancrete Midwest Company.6 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: 1. Employees employed as precast masons and laborers by Spancrete Midwest Company , currently represented by Bricklayers , Cement Block, Stone and Marble Masons, Pointers , Cleaners and Caulk- ers Union No . 2 of Minnesota, and Construction and General Laborers Local 563, AFL-CIO, are entitled to perform the work of erecting , prestressed concrete units in the Duluth , Minnesota , and the Superior , Wisconsin , area, and particularly double T concrete beams, including the rigging , signaling, and welding of such and all other related phases of Spancrete 's erection work heretofore performed by them. 2. Iron Workers Local No. 563, International Association of Bridge , Structural and Ornamental Iron Workers , 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 Spancrete Midwest Company to assign the above work to ironworkers who are currently represented by such labor organizations. 3. Within 10 days from the date of this Decision and Determination of Dispute , Iron Workers Local No. 563, International Association of Bridge, Struc- tural and Ornamental Iron Workers , AFL-CIO, shall notify the Regional Director for Region 18, in writing , whether it will or will not refrain from forc- ing or requiring the Employer , by means proscribed by Section 8(b)(4)(D ) of the Act, to assign the work in dispute to employees represented by it rather then to employees represented by Bricklayers , Cement Block , Stone and Marble Masons, Pointers , Cleaners and Caulkers Union No. 2 of Minnesota and Construction and General Laborers Local 563, AFL-CIO. 6 See Teamsters Local Union No. S (Hart-McCowan Foundation Co , Inc ), 147 NLRB 1216