Millwrights Local Union 1080

MILLWRIGHTS LOCAL UNION 1080 Millwrights Local Union 1080, AFL-CIO and Lower Ohio Valley District ` Council of Carpenters, AFL-CIO, and J.` C. Keown, Executive Director, District Council andLocal Union 374, International 'Brotherhood of -Boilermakers, Iron Ship -Builders, Blacksmiths, Forgers and Helpers, AFL-CIO and Joe Bradley, Business Representative, Local Union 374, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and -Helpers, AFL-CIO and Ed Siebert & Sons Contracting Company and Laborers Local Union 561, Laborers International Union of North Ameri- ca, - AFL-CIO.' Cases 25-CD-114-1, 25-CD-1-14-2, 25-CD-114-3, 25-CD-114-4; and 25--CD-114-5 August 18, 1971 DECISION AND DETERMINATION OF DISPUTE - BY MEMBERS FANNING, BROWN, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges by Ed Siebert & Sons Contracting Company, herein called the Employer, alleging that Respondents Millwrights Local Union 1080, AFL-CIO (herein called Millwrights); Lower Ohio Valley District Council of Carpenters, AFL-CIO (herein called Carpenters); J. C. Keown, Executive Director, District Council; Local Union 374, Interna- tional Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers and Helpers, AFL-CIO (herein called Boilermakers); and Joe Bradley, Busi- ness .Representative, Local Union 374, International Brotherhood of Boilermakers, Iron Ship; Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, had violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held in Evansville, Indiana, on June 10, 1971, before Hearing Officer Michael J. Fogerty, at which Laborers Local Union 561, Labor- ers International Union of North America, AFL-CIO (herein called Laborers), Party of Interest, also appeared; All parties appearing were afforded full opportunity- to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing upon the issues. Thereafter, Boilermakers filed a brief with the National Labor Relations Board. 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 proceeding to a three- member panel. I we find no merit in the Boilermakers' contention that the Hearing Officer was biased and prejudiced and that the hearing was not fairly 192 NLRB No. 104 733 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 proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer, Edward N., Siebert, an _ individual doing business as Ed Siebert & Sons Contracting Company, with principal office and place of business located at Michigan City, Indiana, is engaged in the business of demolition and excavating, In the course and conduct of his-business operations, said Employer duringthe past 42 months, a representative period, performed demolition' and related services valued at in excess of $50,000 for customers located, outside the State of Indiana. During the same representative period, said Employer purchased and received goods and materials valued at in excess of $50,000 directly from suppliers, located outside the State of Indiana. Accordingly, the parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Mill- wrights, Carpenters, Boilermakers, and Laborers are labor organizations within the meaning- of Section 2(5) of the Act. M. THE DISPUTE A. - Background and Facts In August 1970, Commercial Contracting Corpora- tion (herein called Commercial) was given a contract- for certain construction work to be performed for Aluminum Company of -America (Alcoa) at its Warrick Operations at Newburgh, Indiana. Commer- cial subcontracted the demolition and removal work to the Employer in two contracts for separate projects. The Employer began work on the first project about March 11, 1971. He assigned various aspects of the demolition work to three unions: Teamsters members were used to haul debris away by truck,, Operating Engineers members operated forklifts and cranes, and Laborers members performed manual work (using torches, welding machines, cleaning up). Only the work assigned to the members of the Laborers is in dispute. , conducted. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On -or about March, 15, 1971, the Employer's superintendent on the project was approached- by several union business agents (including agents for Respondents) who protested the assignment of the work in dispute to the Laborers. At a meeting called by,t e project superintendent on March 15, at which .W tatives of the Millwrights, Boilermakers, Iron Workers, and Laborers were present, the Employer explained that his assignment was based on his previous practice. The Employer alleges, but Respon- dents deny, that at this meeting Respondents made certain threats concerning picketing and/or "shutting down"' the project unlesstheir crafts were assigned the' work in dispute. A meeting of the Evansville Building Trades Council was held later that week at which the Employer reiterated his position and reasons for the work assignment and the Iron Workers representative allegedly stated that he was not sure his members would be working the next day. The facts show that no picketing or job shutdown occurred. The,first project was completed on May 5 and the date for commencement of the second project is uncertain. B. Work in Dispute, The work in dispute involves the assignment of "all demolition and removal work and/or all such, work claimed by the Respondents as falling within their respective work jurisdictions at the Employer's project at the Aluminum Company of America, Warrick Operations, Newburgh, Indiana, location." The first project involved partial demolition in that the Employer was contracted to remove 14 hoppers or dust collectors, ductwork, motors, and blowers? As mentioned, only the work assigned to the Laborers is in dispute. Such work involves manual labor and the use of cutting torches and welding machines. The second project, which as yet has not com- menced, calls for the total demolition and removal of an air receiver, a structure supported with steel beams holding large air receivers, filters, hoppers, blowers, and ductwork. The difference between the first and second projects is that in the first project the Employer contracted merely to remove the hoppers, motors, and ductwork and to leave other parts of the building intact, whereas in the second project the Employer contracted to level the entire structure and haul away its contents. C. Contentions of the Parties The Employer contends that where the items to be demolished and removed do not by contract become the property of the contractor but are retained by the customer for some further use, the demolition is to be done according to craft dines, but where, as here, the demolition contract specifically states that "all mate- rial ^ removed shall become _ the .property, of the contractor" (Employer), then laborers should do:- the work. The Employer contends that-its, assignment of the work to the laborers is, supported byits collective- bargaining-agreement with the Laborers, the,laborers' skill, the nature of the work, its past=practice and industry- practice, .and the economy of operation. Boilermakers takes the position-that in demolition or removal _ work anything -that-the boilermakers origi- nally installed should be, removed by boilermakers. Millwrights takes a similar position, arguing . that anything originally installed by millwrights and removed in a manner so that the material is of some value should be removed by millwrights. They concede, however, ''that the removal of material rendered useless in the removal process is not millwright work. Respondents, while pointing out that their members are being used by other employers on similar projects at the Alcoa site, contend that this issue is really moot inasmuch-as the first project is now completed. The Employer also urges that the scope of the award should include both. projects while the Respondents contend that since the second project has not yet begun, nordispute actually exists as to -that work. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must ' be satisfied that there is reasonable cause'to believe that Section 8(bX4XD) has been violated. Marksberry, the Employer's project superintendent, testified that Bradley of the Boilermakers stated, while in the presence of the other union representa- tives, that if Marksberry did not get "in touch-with Siebert regarding the claimed work that the project would be shut down. Siebert, the Employer; testified that" at the meeting of March 15, 1971, Bradley said that ' either Siebert assign this work to their (Respondents') crafts or the project would be shut down. Siebert also testified that at the meeting ofthe Evansville Building Trades- Council, Tremper, of the Iron' Workers, said that he was not sure his members would be working the next day. Although all Respondents deny that any such statements were made, on the record as a whole, and without ruling on the credibility, of the testimony in issue, we are satisfied that there is reasonable cause to believe 'a violation. of Section 8(b)(4)(D) did occur and that the dispute is properly' before the Board for deterrhina- tion. 2 Commercial was also contracted for the installation of new hopper equipment to replace the obsolete structures that the Employer removed. MILLWRIGHTS LOCAL UNION 1080 E. 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. 1. Certification and collective-bargaining agreements There is -no evidence that a,Board certification- covers the work in dispute. Since the - Employer has a collective-bargaining agreement with the Laborers, but not with any of the Respondents, we find that this factor favors assigning the work to the laborers.3 2. Employer, industry, and area practice The record shows that the Employer's practice on demolition and removal projects where the material removed became its property has been to assign manual work to the laborers. In contrast, the Employer did use ironworkers to do demolition work on some machinery at a project for Whirlpool where the removed machinery was to be further used by Whirlpool. Although the evidence disclosed that the Employer has never engaged in in-plant dismantling of the materials involved herein, i.e., hoppers or dust collectors, the present work is not substantially different from its past projects. The Employer's practice, therefore, of assigning such manual work to laborers where the materials dismantled become its property is a factor that favors its present assignment of the disputed work to employees represented by the Laborers. While the Employer claims that the industry and area practice favors the assignment of the disputed work to laborers, there is insufficient evidence in the record to warrant such inference. In these circum- stances, the resolution of the dispute cannot rest on factors of industry and area practice. 3. Skills, efficiency, and economy The record indicates that the actual demolition work is not difficult nor does it require any great measure of skill. The Employer concedes that the laborers, boilermakers, and millwrights all are skilled in the use of cutting torches and wrecking bars. But whether the boilermakers and millwrights as crafts- men are more skilled in that regard is not, in view of the nature of the demolition work, significant since the Employer has been satisfied with the laborers' performance of the work in question. Moreover, it appears that the use of laborers to perform this work is a The Laborers also alleged that the Employer's assignment is supported by its International Manual of Jurisdiction. We do not, however, find this 735 more efficient and economical, not only because their pay scales are lower, but even if members of Respondents were assigned the particular work the Employer would still' need to employ laborers to do cleaning up, sweeping, and digging work which the craftsmen do not do. Accordingly, considerations of efficiency of operation and economy tend to favor an assignment consistent with that made by the Employ- er. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by the Laborers are entitled to perform the work in dispute. This assignment is consistent with the initial assignment, the contract with the Laborers, the Employer's practice, and the efficiency and economy of operation. The Scope of the Determination The Employer currently has a second contract, apart from the one already completed, for demolition and removal work at the Alcoa site and intends to assign the work in dispute "at contract to the laborers. As the work involved in the second contract is very similar to the work already completed, there is, in our opinion, a considerable likelihood that similar disputes may occur with respect to that work. Therefore, we hold that the determination in these cases applies not only to the specific job dipute which gave rise to this proceeding, but to any similar work disputes which may arise in the performance of the Employer's second demolition contract at the Alcoa site. 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 of Ed Siebert & Sons Contracting Company, who are currently represented by Laborers Local Union 561, , Laborers International Union of North America, AFL-CIO, are entitled to do "all demolition and removal work and/or all such work claimed by the Unions involved herein as falling within their respective work jurisdictions at the Employer's projects at the Aluminum Company of America (Alcoa), Warrick Operations, Newburgh, Indiana, location." 2. Millwrights Local Union 1080, AFL-CIO; evidence to be material in resolving this dispute. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lower Ohio Valley District Council of Carpenters, AFL-CIO; J. C. Keown, Executive Director, District Council; Local Union 374, International Brother- hood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers and Helpers, AFL-CIO; and Joe Bradley, Business Representative, Local Union 374, International Brotherhood of Boilermakers, Iron Ship - Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, are not entitled by means proscribed by Section 8(bX4)(D) of the Act to force or require Ed Siebert & Sons Contracting Company to assign the above work to their members or employees whom they represent. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organiza- tions and parties listed in the, preceding paragraph shall notify the Regional Director, for Region 25, in writing, whether or not they will refrain from forcing or requiring Ed Siebert & Sons Contracting Company by means proscribed by Section 8(b)(4)(D) of the Act to assign the work in dispute to their members or employees whom they represent rather than to employees of Ed' Siebert & Sons Contracting Compa- ny represented by Laborers Local Union 561, Laborers International Union of North America, AFL-CIO.