Local 112, Ornamental Ironworkers

LOCAL 112, ORNAMENTAL IRONWORKERS Local 112, International Association of Bridge , Struc- tual and Ornamental Ironworkers, AFL-CIO (0. Frank Heinz Construction Co., Inc.) and Wesley R. Bantz and William J. Welch and Carpenters Local Union No. 183, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 38-CD-47 December 21, 1970 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Wesley R. Bantz and William J. Welch, members of Carpenters Local Union No. 183 affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO (hereinafter called Millwrights), on May 12, 1970, alleging that Local 112, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO (hereinafter called Ironworkers), has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring O. Frank Heinz Construction Co., Inc., an employer performing construction work at the Pabst Brewing Company plant in Peoria Heights, Illinois, to assign the work of moving two machines, from locations adjacent to their intended bases onto such bases, to employees represented by the Ironworkers rather than to employees represented by the Millwrights. A hearing was held before Hearing Officer James B. Ruyle on June 25 and July 6, 1970. All parties appeared at 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 made at the hearing are free from prejudicial error and are hereby affirmed. The Ironworkers and the Mill- wrights have filed briefs in support of their positions, and they have been duly considered.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board makes the following findings: i The Ironworkers has also filed two posthearing motions In view of our disposition of this proceeding, it becomes unnecessary to consider the Ironworkers motion to dismiss After carefully considering the Ironworkers motion for disciplinary action, we have concluded that the proffered I. THE BUSINESS OF THE EMPLOYER 401 The parties stipulated, and we find, that O. Frank Heinz Construction Co., Inc., (herein called the Employer), is and has been at all times material herein an Illinois corporation engaged in business as a general contractor, with an office and place of business at Peoria, Illinois, and that during 1969 the Employer purchased materials and supplies from outside the State of Illinois costing more than $50,000, which were thereafter shipped into that State. Accord- ingly, we find, as the parties have stipulated, that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Ironworkers and the Millwrights are labor organiza- tions within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In about October 1969, the Employer began performing certain remodeling and construction work at the Pabst Brewing Company plant at Peoria, Illinois, employing various laborers and mechanics including ironworkers and millwrights. The Employer then, and at all times material herein, had collective- bargaining agreements with the Ironworkers and the Millwrights which bound the parties to submit their jurisdictional disputes to the National Joint Board for the Settlement of Jurisdictional Disputes (herein called the Joint Board) and to abide by the procedures and decisions of that tribunal. The Unions are also bound by the constitutions of the International unions with which they are affiliated. Part of the Employer's contract work, designated job 23, involved dismantling of old bottle line 4, and installation of a new bottle line 4 in its place. The bottling line under construction, when completed, would utilize new machinery and some used machin- ery from old line 4. Two pieces of the used machinery, one called an "uncaser" and the other a "flap opener," are involved in the present dispute. Sometime prior to May 4, 1970, both of these machines were moved by the ironworkers to a position about 15 to 20 feet from the incomplete concrete bases where they were eventually to be placed. Several weeks before May 5, 1970, the date upon which two machines were to be moved to their bases, evidence does not warrant the initiation of proceedings under Section 102 44 of the Board's Rules and Regulations and Statements of Procedures, Series 8 , as amended 187 NLRB No. 55 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Millwrights business agent notified the Employ- er's superintendent, Clyde Atkins, that he would withdraw carpenters and millwrights from the Pabst project if millwrights were not assigned the work of moving the uncaser and flap opener from their temporary resting places to the bases upon their completion Prior to their arrival at such temporary location, the two aforementioned machines had been moved, solely by the ironworkers, from place to place to faciliate progress of the plant remodeling work. This included, as noted above, their movement to the position 15 to 20 feet from their intended bases. There is some, although inconclusive, indication in the record that prior to this threat, the Employer had determined that the Ironworkers would perform the final placement. After the above conversation, how- ever, the Employer made an assignment of the work to the Millwrights, as noted below. On May 4, 1970, the Employer's superintendent informed the respective stewards of the Millwrights and the Ironworkers that all work involving the final movement of the two machines to their bases, placement thereupon, and final alignment, was assigned to the Millwrights. Thereafter on May 4, the Ironworkers business agent, Palmer, learned of the Employer's work assignment to the Millwrights, apparently from the Ironworkers steward. On May 5, about 5 of Employer's ironworkers and 17 of its millwrights reported for work at the Pabst plant. Palmer arrived at the plant about 7:40 a.m., accompanied by about 20 Ironworkers members not employed by the Employer. Thomas Atkins, the ironworkers foreman, informed Superintendent Clyde Atkins that the Employer's ironworkers would move the two disputed machines to their bases. The uncaser was then promptly moved onto its base by the Employer's ironworkers under the direction of their foreman, while the Employer's millwrights, and the Ironworkers members brought to the project by Palmer, looked on. The flap opener was similarly moved to its completed base on May 14 or 15 by ironworkers. The Employer, on the morning of May 5, sent a telegram to the Joint Board advising it that the work of moving the uncaser and flap opener had been assigned by the Employer to the Millwrights, but was actually performed by the Ironworkers. The telegram requested that "BOTH CRAFTS BE DIRECTED TO PROCEED WITH THE WORK AS ASSIGNED PENDING PROCESSING OF DISPUTE IN AC- CORDANCE WITH ESTABLISHED PROCE- DURES." On May 6, 1970, the Chairman of the Joint Board sent telegrams to J. H. Lyons, General President of the Ironworkers, and to the Employer. The telegram sent to Lyons requested him to direct the Ironworkers Local to adjust any continuing jurisdictional dispute directly or to process the work assignment complaint in accordance with procedural rules of the Joint Board. Thereafter, charges alleging violation of Section 8(b)(4)(D) of the Act were filed with the Regional Office of the Board by two members of the Mill- wrights. Within 10 days of the filing of such charges, the Ironworkers submitted to the Regional Office copies of the constitutions of the two competing unions, establishing that they were bound to submit work assignment disputes to the Joint Board, and copies of the contracts between the Employer and the two unions, indicating that the Employer had similar- ly agreed to be bound by Joint Board procedures. Subsequently, the Regional Office issued a notice of hearing under Section 10(k). On June 12, the Employer sent a telegram to the Joint Board which read as follows: "NLRB HAS SCHEDULED 10(k) HEARING ON THE WORK ASSIGNMENT DISPUTE ON PABST. THERE- FORE OUR MAY 5, 1970, TELEGRAM SHOULD BE DISREGARDED." B. The Work in Dispute The work in dispute consists of the movement of the two machines (the "flap opener" and the "uncaser") onto their completed bases from temporary resting places approximately 15 to 20 feet therefrom, where they had been moved by the ironworkers prior to completion of their bases. C. The Contentions of the Parties The Millwrights contends that the Joint Board has no authority to determine the present work assign- ment dispute, despite the fact that all the parties herein are bound by constitution and/or contract to abide by its procedures and decisions. The Mill- wrights bases its contention on an alleged oral agreement between the Millwrights and Ironworkers Internationals that they would not submit such disputes to the Joint Board unless the involved contractor so requested. Because the Employer, on June 12, 1970, sent to the Joint Board a telegram requesting that its earlier submission of the dispute on May 5, 1970, be disregarded, the Millwrights argues that the oral agreement is now operative. Millwrights further contends that the Employer's assignment to it of the disputed moving work, on May 4, 1970, was correct because, according to a line of Joint Board decisions dating back to February 1968, following delivery of machinery to a place adjacent to its installation point, any further rigging, as well as final alignment of the machine, is work properly assigned to Millwrights. Ironworkers contends that all parties to the present work assignment dispute are, by virtue of the LOCAL 112, ORNAMENTAL IRONWORKERS contracts of the respective labor organizations with the Employer, bound to abide by the procedures and decisions of the Joint Board, and that the Employer's attempt to withdraw the dispute from that tribunal on June 12, after previously submitting it on May 5, was simply responsive to the Board's decision to assert jurisdiction at that time. Ironworkers further contends that it originally was assigned the disputed work when the Employer commenced activities at the Pabst plant and that the assignment would not have been changed to Mill- wrights had not officials of that Union threatened to withdraw millwrights and carpenters from the Pabst project in order to procure the work. Ironworkers also claims that, according to area practice and the past practice of the Employer on the Pabst project, as well as the Ironworkers own construction of Joint Board decisions, the disputed work was properly performed by ironworkers. D. Applicability of the Statute Section 10(k) of the Act directs the Board to hear and determine the dispute out of which Section 8(b)(4)(D) charges have arisen, unless , within 10 days after notice that such charges have been filed, the parties to the dispute submit to the Board satisfactory evidence that they have agreed upon a method for its voluntary adjustment. There are in evidence in this case current collective- 403 bargaining contracts binding the Employer, the Millwrights, and the Ironworkers to the procedures and decisions of the Joint Board. This evidence was submitted to the National Labor Relations Board in timely fashion under Section 10(k), within 10 days after the filing of the Section 8(b)(4)(D) charges. Accordingly, we find that the labor organizations here involved and the Employer have agreed upon a method for the voluntary adjustment of the present work assignment dispute, within the meaning of Section 10(k), and that this Board should honor the method agreed to by the parties.2 Even if we were to entertain the contention of the Millwrights that the constitutional and contractual obligations of the two unions have been superseded by an oral agreement not to submit disputes to the Joint Board except when the concerned contractor so requests, it is clear that the exception would apply on these facts. The Employer clearly desired to have the Joint Board determine the dispute in the first place, and merely withdrew its request for Joint Board intervention when this Board assumed jurisdiction of the cause. Accordingly, we shall quash the notice of hearing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. 2 Local 1, IBEW, AFL-CIO (Sundermeyer Painting Co, Inc), 155 NLRB 968