Southwest Building Trades Council

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwest Building Trades Council of Montana, AFL-CIO; General Laborers Local Union No. 163, AFL-CIO; International Union of Operating Engineers Local Union No. 400, AFL-CIO and The Anaconda Company and United Steelworkers of America, Local 1-A, AFL-CIO: International Union of Operating Engineers, Local No. 375, AFL-CIO. Case 19-CD-144 November 12, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by The Anaconda Company, hereinafter called Anaconda, alleging that the Southwest Building Trades Council of Montana, AFL-CIO, hereinafter called Council, General Laborers Local Union No. 163, AFL-CIO, hereinafter called Local 163, and International Union of Operating Engineers, Local Union No. 400, AFL-CIO, hereinafter called Local 400, had violated Section 8(b)(4)(i) and (ii)(D) of the Act. The charge alleges, in substance, the Council picketed Anaconda's Orton and Heilbronner buildings demolition project in Butte, Montana, with an object of forcing or requiring Anaconda to assign certain work to workmen represented by the above-named Respondent labor organizations, which work Anaconda was performing with its own employees represented by the United Steelworkers of America, Local 1-A, AFL-CIO, and International Union of Operating Engineers Local No. 375, AFL-CIO. A hearing was held on May 20, 1969,' before Hearing Officer Patrick H. Walker. All parties except Operating Engineers Locals 375 and 400,2 participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence at the hearing on the issues. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board makes the following findings: All dates herein are 1969 unless otherwise indicated The Hearing Officer was informed that Locals 375 and 400 had allegedly reached an accord However, since the terms of such alleged accord were not submitted in evidence and the Charging Party not having evidenced any acceptance of such alleged agreement we shall proceed to make our findings herein based upon the record herein 'Respondent Southwest Building Trades Council filed a brief which was rejected because of untimely filing No other briefs were filed 1. THE BUSINESS OF THE EMPLOYER The Anaconda Company, is a Montana corporation, with its principal place of business in Anaconda, Montana. Its operations, so far as they are pertinent here, consists of open pit mining in and about the city of Butte, Montana. As the circumference of the open pit expands, Anaconda purchases properties situated in the path of expansion and demolishes the structures located on such properties. It was stipulated and we find that Anaconda which produces, fabricates, ships, and sells, in interstate commerce, products and materials in excess of a million dollars yearly, is an employer within the meaning of the Act and 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. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that the Unions mentioned above, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The disputed work which gave rise to this proceeding concerns work performed by employees of Anaconda, represented by the United Steelworkers of America, Local 1 -A, AFL-CIO,4 and International Union , of Operating Engineers, Local No. 375, AFL-CIO,' in the demolition of two building structures in Butte, Montana, for the purpose of converting the property to a parking lot for Anaconda's vehicles and private vehicles operated by its office workers employed at its main office in Butte. B. The Facts Anaconda secures the bulk of its ore from an open pit originally situated at the outskirts of Butte's city limits, which has now expanded into the city proper. As a result of this expansion, Anaconda purchased properties and structures, including school buildings, hotels, rooming houses, homes and 'The Steelworkers were certified by the Board in Case 19-RC-1866 as bargaining representative for, among others, the following employees " laborers employed in construction or repair work in or about plants, parks, playgrounds, recreational centers and other properties of the Company " The existing collective-bargaining agreement between the Steelworkers conforms to the aforementioned Board certification 'Local 375 was certified by the Board in Case 19-RC-1822 as exclusive bargaining agent for employees in operating engineers classifications employed by Anaconda "in or near the employer's Butte and Silver Bow County Montana operations " The existing collective-bargaining agreement between Local 375 and Anaconda adopts the description of the unit as defined in the aforesaid Board certification 179 NLRB No. 90 SOUTHWEST BUILDING TRADES COUNCIL various other types of buildings, and demolished such structures. At all times in the past Anaconda performed and assigned such demolition work to its employees, including laborers and operating engineers who were members of the Steelworkers and Local 375, respectively. In the case of the work involved in the instant dispute the demolition work was done by employees of Anaconda operating a crane with ball attached, bulldozers and front end loaders, who were members of or represented by Local 375, and by laborer employees of Anaconda, members of or represented by the Steelworkers. Anaconda in the past 5 years has used its employees represented by the Steelworkers (laborers) and Local 375 on demolition work in connection with structures on properties owned by it or acquired by it in over a thousand instances. Not only have such demolition projects been located in or about the "hill" area, but several in recent years have been in the "downtown" area.' In fact, demolition of two projects similar to the project involved here was performed by employees of Anaconda represented by the Steelworkers and Local 375.' In view of the almost continuing necessity for such demolition work Anaconda has created what it describes as an "almost permanent organization that takes care of this work," involving its employees; i.e., operating engineers, laborers and teamsters. The instant dispute is the first time that any union or the Council has questioned Anaconda's use of its employees represented by the Steelworkers and Local 375 in performing such demolition work.' It is also the first instance where such a project engaged in by Anaconda has been picketed by the Council or any local union. The Council and Local 163 in seeking to secure this demolition work for members of Local 163 relied on the fact that they had performed such work when it was done by general contractors and on the fact that "laborers" performing such work for general contractors received a higher wage rate than that paid by Anaconda to "laborers" who were represented by the Steelworkers. However, in seeking their objective, the Council and Local 163, sought to force Anaconda to contract the instant demolition work to a general contractor who would employ workers represented by Local 163. The parties stipulated, at the hearing, that the Respondent labor organizations picketed the instant demolition project on January 29, at which time work on and picketing of the project ceased.' Work The parties referred to the actual mining operations of Anaconda as being carried on the "hill" while construction and demolition work performed roughly in an area comprising work away from the "hill" such as the business district of Butte was referred to as being performed "downtown " 'In addition to the Steelworkers and Local 375, other crafts with whom Anaconda had bargaining agreements worked on these projects Some of these craftsmen, such as Carpenters and Ironworkers, were represented by Local Unions that were members of the Council 'Anaconda did pay the "downtown" rate to union crafts on construction jobs, other than demolition, when the work was performed downtown 555 on the project was resumed on February 24, by Anaconda with its employees, and picketing was also resumed. While work was performed on the project on February 25, there was no picketing. Work then continued from February 25 up to the time the demolition project ended on March 7. The Respondent Unions during the latter period picketed the project on February 26, 27, 28, and March 3, 4, 5,and 7. During the picketing the legend on the picket sign read as follows: "Notice to Public. The work on this project is being performed substandard to negotiated wage rates for the Southwest Building Trades Council." There were no actual work stoppages by Anaconda's employees represented by the Steelworkers and Local 375, or other of its employees represented by Locals with which Anaconda had agreements between February 24 and the completion of the project on March 7. C. Contentions of the Parties Anaconda contends it had assigned the work in dispute to the Steelworkers and local 375 by virtue of the collective bargaining agreements, which were made part of the record. Anaconda, in addition, relies on our certifications issued in Cases 19-RC-1866 and 19-RC-1822. Anaconda and the Steelworkers contend that the Steelworkers should retain the work because of efficiency in scheduling the work, and economy. They further contend that the Steelworkers possess superior skills and can perform the work in a safer manner because of training and experience. Council claims however that their members traditionally performed demolition work performed by general contractors within the area of the Council's jurisdiction, which includes the city of Butte. Locals 375 and 400, although served with a copy of the charge, amended charges and Notice of Hearing, did not, as previously noted herein, appear at the hearing. D. Applicability of the Statute Before the Board may proceed to a determination 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. As indicated above, the record contains ample evidence that the Respondent Unions, on or about February 24, 26, 27, 28, March 3, 4, 5, and 7, picketed with an avowed object of forcing or requiring Anaconda to contract out its demolition work to general contractors who would employ workers represented by Respondent Union Locals 163 and 400. 'The work stoppage on this date was occasioned by the fact that several other trades having collective-bargaining agreements with Anaconda filed a grievance under their contracts regarding the wage rate required to be paid these trades by Anaconda on the downtown project The grievance was settled and work resumed on February 24 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find on the basis of the entire record, that there is 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 under Section 10(k) of the Act. E. The Merits of the Dispute As stated in the J A Jones case,10 we shall, pursuant to the Supreme Court's CBS decision," determine each case presented for resolution under Section 10(k) of the Act and make the appropriate assignment of the disputed work only after taking into account the evidence supporting the claims of all the parties and balancing all relevant factors. 1. Certification and bargaining agreements The record establishes as noted above that the Steelworkers and Local 375 have Board certifications . In addition , the Steelworkers and Local 375 have existing collective-bargaining agreements with Anaconda. The record also discloses that Anaconda has a collective-bargaining agreement with the Building and Construction Trades Department , AFL-CIO, covering Anaconda' s operations in Butte and elsewhere in Montana which agreement includes therein numerous constituent locals of the various building trades in the Butte area . Locals 400 and 163, however, are not signatories to such agreement. The Steelworkers' Board certification and its agreement with Anaconda clearly covers the disputed work.' 3 Local 375 Board certification and its agreement with Anaconda appears to apply to employees engaged in the type of work in dispute when performed by Anaconda However, any doubt as to the latter is clearly settled by the long established practice of Anaconda of using its employees represented by Local 375 on this type of work. The aforesaid Board certification and collective-bargaining agreements are factors favoring the assignment of the disputed work to employees represented by the Steelworkers and Local 375. 2. Company and industry practice For a period extending over 5 years, Anaconda, because of the continuing volume of demolition work necessitated by Anaconda's increasing acquisition of properties necessary to its expansion of ore mining operations, has created an almost permanent organization to carry on this demolition work. It includes employees represented by the Steelworkers and Local 375, and employees "International Association of Machinists. Lodge No 1743, AFL-CIO (J A Jones Construction Co ), 135 NLRB 1402 "N L R B v Radio and Television Broadcasting Engineers Union, 364 US 573 "See fns 4 and 5, supra represented by other Local Unions with which Anaconda has agreements. It appears from the record that the Council, including Local 163, has jurisdiction over and performs demolition work in the Butte area when performed by contractors with whom it has agreements. However, such jurisdictional claim and practice, does not, in our opinion, support the Council's or Local 163's right to force Anaconda to contract out the demolition work in dispute. The evidence of record clearly establishes that Anaconda has performed with its own employees on its own properties demolition projects that number over one thousand and that the project herein constitutes the first instance that the Council, Local 400 and Local 163 ever asserted any claim to such work. In the absence of a countervailing area or industry practice, the practice of Anaconda in using its employees over a period of 5 years in performing demolition work on structures located on its own properties is a factor favoring the assignment of the disputed work to Anaconda employees represented by the Steelworkers and Local 375. 3. Efficiency of operation , skills involved In the years that Anaconda has used its employees to perform demolition work on structures located on its properties the employees represented by the Steelworkers and Local 375 have demonstrated to the satisfaction of Anaconda that they possess the knowledge and skill necessary to satisfactorily perform demolition work. While it appears that Local 400's and Local 163's members also possess the skills necessary to perform demolition work and can use tools and equipment necessary for the performance of such work, such factor does not outweigh the fact that Anaconda's employees have had a considerable concentrated experience in performing this type of work resulting in greater efficiency and economy for Anaconda in the planning and scheduling of the work. It would also appear that because of the tremendous volume of this type of work performed by Anaconda with its employees, that such employees have developed superior skills and can perform the work in a safer manner because of training and experience Hence, we find these factors favor assignment of the work to employees represented by the Steelworkers and Local 375. In view of the foregoing, on the basis of the record as a whole, and upon appraisal of all relevant considerations, we believe that the work in dispute should be awarded to employees of The Anaconda Company, represented by the Steelworkers and Local 375. Anaconda for a period exceeding 5 years, has constantly performed this type of work with its employees who are represented by the aforesaid unions, and they have demonstrated the requisite skills to perform the demolition work to the satisfaction of Anaconda, and without objection, by SOUTHWEST BUILDING TRADES COUNCIL the Council, Local 163, and Local 400 until the instant dispute. In making this determination, which is limited to the controversy which gives rise to this proceeding, we are not assigning the work to Steelworkers Local 1-A or to Operating Engineers, Local 375 or to their members. Therefore, we shall determine the dispute by assigning the work in question to employees of the Anaconda Company represented by Steelworkers, Local 1-A and Operating Engineers, Local 375. 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 case, the National Labor Relations Board makes the following Determination of Dispute. 1. Laborers who are represented by the United Steelworkers of America, Local 1-A, AFL-CIO, and operating engineers represented by Local 375, International Union of Operating Engineers, AFL-CIO, pursuant to Board certification and collective-bargaining agreements with the Anaconda Company, are entitled to perform the work on the demolition project which was involved in this 557 dispute." 2. General Laborers Union, Local No. 163, AFL-CIO; International Union of Operating Engineers Local Union No. 400, AFL-CIO, and the Southwest Building Trades Council of Montana, AFL-CIO, are not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require The Anaconda Company, to assign the work described above to members of General Laborers Union, Local No. 163. AFL-CIO; or Local 400, International Union of Operating Engineers, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, Southwest Building Trades Council of Montana, AFL-CIO; Local No. 163, General Laborers Union, AFL-CIO, and Local 400, International Union of Operating Engineers, AFL-CIO, shall notify the Regional Director for Region 19, in writing, whether or not they will refrain from forcing or requiring The Anaconda Company, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination. "The demolition project was generally referred to as the Orton-Hedbronner project