Iron Workers, Local 3

IRON WORKERS, LOCAL 3 International Association of Bridge , Structural and Ornamental Iron Workers, Local Union No. 3, AFL-CIO and Dickerson Structural Concrete Cor- poration and United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO. Case 6-CD-401 February 25, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Dickerson Structural Concrete Corpo- ration, hereinafter called the Employer, alleging that the International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 3, AFL- CIO, hereinafter called Iron Workers, has violated Sec- tion 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Daniel Silverman on October 13 and 18, 1971. The United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, hereinafter called Carpen- ters, Iron Workers, and the Employer 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. Thereafter the Em- ployer, Iron Workers, and Carpenters filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed, Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is engaged in the building and construction industry and, during the past 12-month period, received directly from points outside of the Commonwealth of Pennsylvania goods valued in excess of $50,000. The parties also stipulated that the Employer's contract for work involved in this case is valued in excess of $750,000. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 195 NLRB No. 90 II. THE LABOR ORGANIZATIONS INVOLVED 575 The parties stipulated, and we find, that Iron Work- ers and Carpenters are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is a subcontractor for the erection of precast structural concrete girders, columns, and beams at the Interim Terminal Facilities at the Greater Pittsburgh Airport, which is located in Moon Town- ship, Allegheny County, Pennsylvania. To perform the work at the airport, the Employer used its own em- ployees, who were represented by Carpenters and were covered by two agreements : a collective-bargaining agreement between the Employer and Carpenters, which does not provide for the submission of jurisdic- tional disputes to the National Joint Board for Settle- ment of Jurisdictional Disputes, herein called the Joint Board; and an agreement between Carpenters and the Master Builders Association of Western Pennsylvania, herein called MBA, of which the Employer is a mem- ber. Prior to the present dispute, the MBA-Carpenters agreement provided that the members of MBA and Carpenters would be bound by the jurisdictional dis- pute decisions of the Joint Board. However, that agree- ment had expired, and the agreement between MBA and Carpenters in effect at the time of the dispute con- tained no provision for the submission of jurisdictional disputes to the Joint Board; instead , the agreement simply provided that both parties agreed to be bound by the provisions of a plan for settlement of jurisdic- tional disputes as mutually adopted by the parties. At the time of this dispute , no such plan had been adopted. On August 3, 1965, the Employer and Iron Workers had entered into an agreement wherein the Employer agreed to discontinue a civil action against Iron Work- ers and to enter into an informal settlement of its unfair labor practice charges against Iron Workers . Inter alia, the agreement provided that the parties agreed to abide by the rules of the Joint Board in the event that Iron Workers challenged the propriety of any job assign- ment made by the Employer "over which they [Iron Workers] now or hereafter assert jurisdiction." The agreement contained no termination date. In December 1970, Iron Workers Business Agent Sullivan had orally and in writing expressed an interest in work similar to that now in dispute. On December 21, 1970, the Employer informed Carpenters that it planned to assign the disputed work to it . On January 5, 1971, Employer's Vice President Butts, by letter to Iron Workers, stated that the Employer no longer recognized the Joint Board since two associations of 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which it was a member, MBA and Associated General Contractors, had ceased to recognize the Joint Board. In February 1971, representatives of Iron Workers and Carpenters met at the jobsite and discussed the assign- ment of the disputed work. Sullivan and Butts also discussed the assignment of the disputed work by phone. When the Employer persisted in refusing to assign the disputed work to members of Iron Workers, Iron Workers submitted the dispute to the Joint Board on April 23, 1971, allegedly in accordance with the agreement entered into between the Employer and Iron Workers in 1965. The Joint Board thereupon requested information from the Employer concerning the dis- pute; but the Employer refused, responding that it was no longer bound by the decisions of the Joint Board. On April 30, the Joint Board notified all parties concerned that it had awarded the disputed work to Iron Workers. Thereafter, on May 25, Iron Workers sent a letter to the Employer requesting information on how many Iron Workers personnel it would need to complete its subcontract. The Employer made no reply to that letter and closed down its operations at the airport until Sep- tember 1971. On September 20, the Employer resumed its work at the airport, and immediately thereafter, Iron Workers established a picket line at the airport site. The pickets carried signs which read: DICKERSON CO. REFUSES TO ABIDE BY THE NATIONAL JOINT BOARD DECISION FOR PRECAST CONCRETE IRON WORKERS LOCAL NO. 3 The picketing continued until September 29, when it ceased pursuant to the settlement of 10(1) proceedings. The work was thereafter completed by Carpenters. B. The Work in Dispute The parties agree that the work in dispute involves the erection of precast concrete structural members composed of columns, girders, and beams at the In- terim Terminal Facilities at the Greater Pittsburgh Airport, Moon Township, Pennsylvania. C. Contentions of the Parties 1. Contentions relating to whether the Joint Board decision was binding on the parties The Employer contends that the 1965 agreement between it and Iron Workers expired after a reasonable time; that since the Associated General Contractors, an organization of which the Employer is a member, with- drew from the Joint Board on September 30, 1969, it was not bound by the Joint Board decision . and that it that it no longer recognized the Joint Board and would not be bound by its decisions. Carpenters contends that, at the time of the dispute, the MBA's agreement with Carpenters contained no provision that the mem- bers of the MBA, including the Employer, would be bound by the decisions of the Joint Board, and that Carpenters is not bound either by the 1965 agreement between the Employer and Iron Workers, since it was not a party to it, or by the Joint Board decision, since it was not a participant therein. Iron Workers contends that it received no notice from the Employer that it had withdrawn from the 1965 agreement, because the Em- ployer's letter of January 5, 1971, specifically dealt with a work dispute pertaining to work located in West- moreland County, while the disputed work in this case involves work in Allegheny County; that the 1965 agreement is still binding on the Employer; and that Carpenters was bound by the Joint Board's decision. 2. Contentions relating to a demand by Iron Workers for the disputed work The Employer contends that Iron Workers de- manded the disputed work orally on several occasions and by letter on May 25, 1971. Carpenters contends that Iron Workers made a formal claim for the dis- puted work by demanding that the Employer comply with the Joint Board's decision. Iron Workers contends that it made no written or oral demand for the disputed work; it contends that it merely sought to pressure the Employer into complying with the Joint' Board's award to it, and that its picketing was solely for the purpose of informing the public of the Employer's noncompli- ance. D. Applicability of the Statute Before the Board may proceed with 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 and that there is no agreed-upon method for voluntary settlement of the dispute. All parties stipulated and agreed that Iron Workers picketed or caused to be picketed the worksite from September 20 to 29, 1971. There was no stipulation by the parties as to the objects of the picketing . Iron Work- ers moved to quash the notice of the hearing on the ground that there was an agreed-upon method for the voluntary settlement of the dispute.' The evidence also establishes that Iron Workers did, in fact, make a demand for the disputed work by caus- ing the Employer to be picketed , and that the object of the picketing was to force the Employer to assign the Iron Workers supported this motion by introducing a copy of the 1965 gave Iron Workers notice, by letter on January 5, 1971, agreement into evidence IRON WORKERS, LOCAL 3 577 disputed work to Iron Workers. It is well established that although the unions involved may be bound to settlement procedures such as those provided by the Joint Board, if, as here, the Employer has not agreed to be bound, the Board is empowered and directed, under Section 10(k) of the Act, to make a binding determination on all the parties, including the Em- ployer.' The Employer, though bound to the Joint Board which was dissolved in September 1969, is not shown to have signified an intention to be bound to the new Joint Board which existed at all times material to the instant controversy. Accordingly, and in view of the Board's decision in Bricklayers, Masons and Plas- terers' International Union of America, Local No. 1, AFL-CIO (Lembke Construction Company of Colorado, Inc.), 194 NLRB No. 98, we find that all parties are not bound by an agreed-upon or alternative method for voluntary adjustment of this dispute. In these circumstances, we find that there is reasona- ble cause to believe that Iron Workers has violated Section 8(b)(4)(D) of the Act. Iron Workers' motion to quash the notice of hearing is denied, since there is no agreed-upon method for voluntary settlement of the dispute. 3. Relative skills, efficiency, and economy of operations The record shows that the carpenters presently em- ployed by the Employer possess sufficient skills to per- form satisfactorily the work in dispute, and the Em- ployer is fully satisfied with the productivity, efficiency, and safety record of its carpenters and desires to con- tinue assigning such work to them. In those instances when the Employer subcontracted similar work to a subcontractor who used ironworkers for the work, the Employer found that the skills, productivity, and effi- ciency of those employees were unsatisfactory, espe- cially with regard to placing the 'work "plumb and in line" within the time periods allocated for such work. The economy of operations to be derived from the Em- ployer's use of its carpenters is obvious. 4. The Joint Board award Although we do not consider the Joint Board award to Iron Workers binding on the Employer, we do con- sider it as a factor in determining the proper assignment of the work in dispute. However, in view of all the circumstances, we are of the opinion that the Joint Board award should not be given controlling weight herein. E. 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. 1. Collective-bargaining agreements The Employer has no employees represented by Iron Workers, nor does it have a Collective-bargaining agreement with Iron Workers either directly or through its affiliation with the MBA. On the other hand, the Employer has had a series of collective-bar- gaining agreements with Carpenters for 14 years cover- ing the disputed work. 2. Company and area practice The Employer's consistent practice when it has per- formed the work has been to assign the disputed work to Carpenters. Inasmuch as the area practice is mixed, it favors neither party. 2 N.L R.B. v Plasterers' Local Union No 79 [Texas State Tile], 404 U S. 116 (December 6, 1971); Lathers Union Local 104, The Wood Wire and Metal Lathers International Union, AFL-CIO (Associated General Contrac- tors), 186 NLRB No 70. CONCLUSION Upon the entire record in this proceeding and after a full consideration of all of the relevant factors, in particular the contractual relationship between the Employer and Carpenters and the Employer's practice, we conclude that the employees of the Employer who are represented by Carpenters are entitled to the work in question and we shall determine the dispute in their favor. In making this determination, we award the work to the employees of the'Employer who are repre- sented by Carpenters but not to that Union or its mem- bers. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board makes the following determination of the dispute: 1. Employees of Dickerson Structural Concrete Cor- poration who are currently represented by United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, are entitled to perform the erection of pre- cast structural concrete members composed of col- umns, girders, and beams at the Interim Terminal 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Facilities at the Greater Pittsburgh Airport, Moon Township, Pennsylvania. 2. International Association of Bridge , Structural and Ornamental Iron Workers, Local Union No. 3, AFL-CIO, is not entitled, by means proscribed by Sec- tion 8(b)(4)(D) of the Act, to force or require Dicker- son Structural Concrete Corporation to assign such work to ironworkers represented by that labor organi- zation. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Association of Bridge, Structural and Ornamental Iron Workers, Lo- cal Union No. 3, AFL-CIO, shall notify the Regional Director for Region 6, in writing, whether or not it will refrain from forcing or requiring Dickerson Structural Concrete 'Corporation, by means proscribed by Section 8(b)(4)(D), to assign the disputed work to employees it represents rather than to employees represented by Carpenters. i