Iron Workers, Local No.40

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 40, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Spancrete Northeast, Inc. and Local No. 190, International Laborers' Union of America, AFL-CIO. Case 2-CD-422 June 21, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge and an amended charge filed by Spancrete Northeast, Inc., hereinafter called Span- crete, alleging that Local Union No. 40, Internation- al Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO,' hereinafter called Iron Workers, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by Iron Workers rather than to employees represented by Local No. 190, International Laborers' Union of America, AFL-CIO, hereinafter called Laborers. A hearing was held before Hearing Officer Law- rence A. Dinerstein on January 27 and February 3, 1972. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues.2 Briefs were filed by Spancrete and Iron Workers. Amicus curiae briefs were filed by Building Trades Employers' Associa- tion of the City of New York (hereinafter called BTEA), Allied Building Metal Industries, Inc. (hereinafter called Allied), and Building and Con- struction Trades Council of Greater New York (hereinafter called BCTC). Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 affirmed. Upon the entire record in this case,3 the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and the record shows, that 1 The name appears as corrected at the hearing 2 Laborers representative did not appear on February 3, 1972 J The request of Iron Workers for oral argument before the Board is hereby denied as the record and briefs adequately present the issues and the Employer is a New York corporation with its principal place of business in South Bethlehem, New York, with plants located in New York State and the State of Ohio. It is engaged in the manufacture and installation of prestressed, precast concrete products. During the calendar year 1971, the Employer received revenues at its New York place of business in excess of $1 million of which in excess of $500,000 was received from customers located outside the State of New "York. During the same period, the Employer purchased and had delivered to its New York State plants from suppliers located outside the State of New York supplies and materials valued in excess of $1 million. All parties stipulated that Spancrete was engaged in commerce within the meaning of the Act. We find, therefore, that the Employer 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Iron Workers and Laborers are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Spancrete contracted with Di-Com Corporation for the manufacture, delivery, and erection of precast, prestressed concrete floor systems at the Kingsbridge Nursing Home project (hereinafter called Kings- bridge project) in Bronx, New York. On February 22, 1971, Spancrete sent a crew of five of its employees, represented by Laborers,4 to the Kingsbndge project in order to begin erection with power of its precast, prestressed concrete planks. After the necessary power crane was assembled, a picket appeared at the job with a sign reading "Spancrete unfair to Iron Workers Local 40." Spancrete's field erection super- intendent, Ivan Millett, testified that the picket was Fred Kloth, the Iron Workers job steward, and that Kloth told him to contact Ray Mullett, a business agent for the Iron Workers. When the crane operator and the oiler ceased working, Millett called Span- crete's president, Blosser, who in turn called the Iron Workers office. Blosser testified that he talked to Iron Workers President Jerry Place, and that Place told him the work belonged to members of the Iron Workers, they wanted the work, and therefore they positions of the parties 4 The five men plus the supervisor were employees of Spancrete and members of Laborers Local 190 because the New York City Laborers Locals (6A, 18, and 20) refused to send men to the Kingsbridge project 197 NLRB No. 112 IRON WORKERS , LOCAL NO. 40 823 picketed the job. Mullett denied that there were any Iron Workers pickets at the Kingsbridge project and further denied any knowledge of a work stoppage. Although Mullett denied the existence of a dispute, he laid claim to the disputed work.5 Inasmuch as the crane is essential in the power erecting operation, Spancrete's crew was unable to work after the crane operator and oiler ceased working. Spancrete's second attempt to perform the work on March 4, 1971, failed when the crane operator and oiler again refused to work. Subse- quently Spancrete subcontracted the work to a firm using ironworkers. B. The Work in Dispute The work in dispute involves the erection with power of precast, prestressed concrete floor slabs at the Kingsbridge project in New York City. C. Contentions of the Parties 1. Spancrete contends that the erection of precast, prestressed concrete slabs should be awarded to Laborers based on collective-bargaining agreements over the past 10 years, two Board certifications, two prior Board jurisdictional awards, and on the basis of safety, skill, and economy. 2. Iron Workers contends that the Board does not have jurisdiction because there is no illegal coercion; but if the Board finds it has jurisdiction then the work should be awarded to the Iron Workers based on the area practice in New York City; Iron Workers traditional performance of this work; the greater skill of Iron Workers; and a BTEA arbitration award giving the work to the Iron Workers. 3. Laborers acknowledges that it lacks territorial jurisdiction in New York City and Westchester County; however, it claims the work under its national contract with Spancrete.6 D. Applicability of the Statute The charge alleges violations of Section 8(b)(4)(D) of the Act and the record, despite unresolved issues of credibility, furnishes reasonable cause to believe that Iron Workers restrained and coerced Spancrete for the purpose of forcing assignment of the disputed work to its members. Although Laborers Locals 6A, 18, and 20 have not claimed any current interest in the existing work assignment made by the Employer, employees represented by Laborers Local 190 will continue to perform the work if it is assigned to them. Furthermore, it does not appear that the dispute has been adjusted.7 Accordingly, we find 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. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors.8 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience, reached by balancing those factors involved in a particular case.9 The following factors are relevant in making a determina- tion of the dispute before us: 1. Certifications and collective-bargaining agreements Laborers has been certified by the Board as the collective-bargaining representative in two New York State plants of the Employer's employees; however, the certifications make no reference to and do not specifically encompass nonplant employees.10 Although Spancrete contends that its plant employ- ees are used as permanent employees on its field erection crews, the plant unit certifications do not signify an intention by the Board that the erection work in dispute should be performed by employees represented by Laborers. Following the certifications, and continuing to date, Laborers and Spancrete have entered into a series of collective-bargaining agreements, both nationally and locally. The provisions governing the employment of laborers are set forth in the agree- ment between Spancrete and the International Laborers' Union of North America, AFL-CIO, which specifically includes "all field construction work performed by the Employer." In addition article II, section I, thereof provides that the covered work jurisdiction is that specified in the International Laborers' Union Manual of Jurisdiction. That 5 Place did not testify at the hearing 6 We note that Laborers Locals 6A. 18, and 20 having geographical jurisdiction in New York City do not claim the work and have refused to work for Spancrete 7 Iron Workers contends that Spancrete agreed to voluntary dispute settlement machinery under BTEA auspices by appearing at a BTEA arbitration hearing relative to another project and pursuant to a request by Laborers However Spancrete is not a member of BTEA and has not submitted to BTEA jurisdiction We find, therefore, that the Board is not precluded from making its determination in this proceeding s N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 US 573, 586 9 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Co), 135 NLRB 1402 10 The certified unit in Case 3-RC-3801 includes all employees at the Employer's Cairo Street, Rochester, New York, plant, excluding office clerical employees, guards, and supervisors as defined in the Act A similar unit was certified for Spancrete's Albany plant in Case 3-RC-2919 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manual includes, as the work of laborers, the following: Where pre-stressed or pre-cast concrete slabs, wall or sections are used, all loading, unloading, stockpiling, hooking on, signalling, unhooking, setting and barring into place of such slabs, walls or sections. Although the above agreements cover the disputed work and tend to support the Employer 's assignment of the disputed work, the significance of this factor is somewhat diminished by the suggestion in the record that no Laborers Local would seek to enforce this agreement in the New York City area. Thus, it is clear from the record that Locals 6A, 18, and 20, which have jurisdiction over laborers in the metro- politan area of New York, have declined to furnish workers to Spancrete, and that Local 190's business agent, Mirabile, has stated that he would not claim work in this area for laborers represented by his Local. Subject to these limitations, we note that the collective-bargaining agreements do tend to support the Employer's assignment. 2. Company and area practice The record establishes that Spancrete, at various locations throughout the United States, uses its own employees represented by Laborers as the basic crew to perform the type of work in dispute. The usual crew consists of three permanent employees and two local employees. The record also clearly shows that only ironworkers perform the type of work in dispute in New York City.11 Spancrete admittedly has completed no jobs in New York City with laborers. Outside of New York City, but still within the jurisdiction of Iron Workers Local 40, Spancrete has used laborers to perform the type of work in dispute. It cannot be fairly stated that this dispute encompas- ses a geographical area extending beyond New York City. We conclude that the area practice in New York City favors an assignment to ironworkers. 3. Prior awards In November 1970, a similar dispute between Laborers Locals 6A, 18, and 20 and Iron Workers over another Spancrete project in New York City was arbitrated before the BTEA.12 The BTEA arbitration board, consisting of 15 employer repre- sentatives, awarded :the erection of precast, pre- ii The record shows longstanding and continuous performance of the type of work here in dispute by Iron Workers. Some 700 contractors (members of Allied) in New York City have for 10 years used exclusively ironworkers . The practice has evolved into one without exceptions , at least as to present record 12 Since 1903, the BTEA has been functioning as a private arbitrator of jurisdictional disputes in the city of New York. Its decisions are regularly published in a volume referred to as the "Green Book." Some 700 stressed concrete work to ironworkers . After a rehearing at which Spancrete's president, Blosser, appeared as a witness pursuant to a request by the Laborers, the BTEA issued a second award favoring ironworkers but limiting the award to erection where power is used. Thereafter, Spancrete complied with the award when the New York City Laborers Locals refused to perform the work pursuant to the BTEA award. Since the BTEA awards were issued and published, there apparently has been complete compliance therewith except for the instant dispute. Although we do not consider the BTEA awards binding on Spancrete, we do consider them a factor in determining the proper assignment of the work in dispute. Spancrete's assignment of the work to the ironworkers in New York City on other projects pursuant to the BTEA award stood in conformity with the existing practices in that area to award power erection work to ironworkers . 13 We find this factor to favor ironworkers. 4. Skills, efficiency, and economy Both laborers and ironworkers possess sufficient skills to perform the work in dispute, as both laborers and ironworkers have had considerable experience in performing this type of work. Although length of training is not identical, there is no affirmative evidence to show one group of employees to be more skilled. The record establishes that the same size crew is required regardless of whether laborers or iron- workers perform the work, but laborers are lower paid. The record is silent as to safety. On the basis of the foregoing and subject to the fact that wage savings can be realized by the employment of laborers, we do not find these factors to favor either union. Conclusion Upon the entire record and in consideration of the foregoing findings, we conclude that the certification, skill, and efficiency factors are relatively neutral between the disputing labor organizations. It is true that Spancrete's collective-bargaining agreement with Laborers favors that union, although it does appear that Laborers would not affirmatively claim the work thereunder if assigned to ironworkers. On the other hand, as we have previously found, the area practice during the preceding 10 years and as defined contractors and most New York City local unions, including Laborers Locals 6A, 18, and 20, and Iron Workers Local 40, have agreed to be bound by the BTEA awards. 13 Our previous 10(k) determinations involving Spancrete are not controlling, since none involved projects in a geographic area where, on this basis of a high volume of construction activity, a clear, unwavering area practice stood in conflict with Spancrete's assignment to laborers IRON WORKERS, LOCAL NO. 40 825 through the prior private arbitration award strongly favors an assignment to ironworkers. BTEA has had a long history of successfully resolving jurisdictional disputes in New York City. Its 600 published decisions over the past 69 years have created a consistent area practice from which New York City contractors can accurately estimate the labor costs of future projects. The volume and complexity of construction in New York City points to a well- defined practice with respect to the disputed work which should not be disturbed absent some compel- ling reason. To hold otherwise, solely on the basis of an employer's assignment, would merely invite controversy in an area where effective guidelines have already been established. Therefore, we con- clude that employees represented by Iron Workers are entitled to the work in question, and we shall determine the dispute in their favor. In making this determination, however, we are assigning the disput- ed work to employees represented by Iron Workers and not to that Union or its members. 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 hereby makes the following Determination of Dis- pute: Employees who are currently represented by Local Union No. 40, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, are entitled to the power erection and installation of prestressed, precast concrete on the Kingsbridge Nursing Home project of Spancrete Northeast, Inc., located in Bronx, New York.