Iron Workers Local 55

IRON WORKERS LOCAL 55 643 International Association of Bridge, Structural and Ornamental Iron Workers Local No 55, AFL-CIO and E H Hayne Co , Inc and Lake Erie District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO' and Local 480, Laborers' International Union of North America, AFL-CIO 2 Case 8-CD-232 effectuate the policies of the Act to assert jurisdiction in this proceeding II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Iron Workers, the Carpenters, the Laborers, are labor organizations within the meaning of the Act November 30, 1972 DECISION AND DETERMINATION OF DISPUTE By MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by E H Hayne, Co, Inc, hereinaft- er referred to as the Employer, alleging a violation of Section 8(b)(4)(i)(ii)(D) by International Association of Bridge, Structural and Ornamental Iron Workers Local No 55, AFL-CIO, hereinafter referred to as the Iron Workers Pursuant to notice, a hearing was held on June 1, 1972, in Toledo, Ohio, before Hearing Officer Marc Bloch The Employer and the Iron Workers, Carpenters, and Laborers 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 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed Upon the basis of the entire record in this case, the Board makes the following findings I THE BUSINESS OF THE EMPLOYER The parties stipulated that E H Hayne Co , Inc, is a State of Ohio corporation with its principal place of business and offices at 770 West Madison Street, Post Office Box 5, Gibsonburg, Ohio, where it is engaged in the general contracting business During the past calendar year, a representative period, it has had gross revenues in excess of $500,000 During the same period, it received goods valued in excess of $50,000 through interstate commerce We find, accordingly, that the Employer is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will i Hereinafter referred to as Carpenters 2 Hereinafter referred to as Laborers III THE DISPUTE A Background and Facts of the Dispute The Employer is a general contractor engaged in the construction of schools, churches, and commer- cial buildings At the time of the proceeding, the Employer was the general contractor for Latham's Super Market in Genoa, Ohio The Employer is not affiliated with any association of contractors and is not at present a party to any contract with a labor organization At the end of March 1972 the Employer started work on the Latham's market with five of its permanent employees The Employer pays the prevailing wage rate as prescribed by the Department of Industrial Relations of the State of Ohio The Employer assigned the disputed work to two carpen- ters and a laborer The Latham Super Market project involves a one- story building with a mezzanine, covering 20,000 square feet The Employer is the general contractor and it contracted out most of the work except for the erection of structural steel, the laying of mesh, the setting of the structural and bar joists, and the installation of the steel deck, which it performed with its own employees On April 17, Stephen Takacs, business representa- tive of the Iron Workers Local 55, telephoned Hayne and stated "You're not using my men to put steel up on that supermarket" He also stated that he was going to picket the next day and shut the job down On April 19, approximately 40 pickets appeared all over the property As a result of the picketing, the Employer's regular employees and a subcontractor's masons, the only other employees on the job at the time, refused to cross the picket line The structural and bar joist work involves the installation of columns, the intersecting beams which lay on the outside walls, the bar joists between the beams, and bridging at the top and bottom web of the joists which are tack welded into position Only $5,004 worth of labor is involved in the erection of the structural and bar joists and the laying of the steel deck, while the total job is worth approximately $277,000 The steel mesh is laid over a vapor barrier 200 NLRB No 96 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so that it will be in the top third of the poured concrete When a footing is poured and before the concrete sets, vertical rods of 12 to 10 inches are inserted After the concrete is set, horizontal bars are installed by attaching with small strands of wire The installation of bar joists requires the use of a qualified welder and the Employer has two employ- ees who are qualified Whenever a crane is needed on a particular job, the Employer subcontracts to an employer, who coincidentally employs Local 55 members B The Work in Dispute The disputed work involves the erection of struc- tural steel, laying of steel mesh, installation of reinforcing rods and foundations, and installation of roof sheeting at the construction site at Latham's Super Market in Genoa, Ohio C The Contentions of the Parties The Iron Workers contends that the work in dispute traditionally falls within the jurisdiction of the Iron Workers, that ironworkers are trained in such work through an apprenticeship program, and that the Iron Workers should be assigned the work in the interests of the general safety of the public The Employer contends that its work assignment was in accordance with the proven skill and efficiency of its employees, that it was economically beneficial as the Employer is a small contractor struggling to remain in the construction business while faced with a competitive squeeze between nonunion contractors and large high-volume con- tractors who have agreements with all of the crafts, that the Employer has the right to maintain an open shop of qualified workers without regard to union membership or traditional claims to particular work, and that it is the right of an employer to furnish his own employees with steady employment and that he should not be faced with the threat that his job will be shut down unless he lays off his employees and hires others The Carpenters contends that the disputed work was properly assigned to its members who are employees of the Employer, that those employees possessed the requisite skill and experience, and that they were capable of doing the work The Laborers offered no position other than its stated agreement with the Employer's assignment D Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 The record shows that shortly after the Employer commenced construction on the Latham's job with its own employees who were members of the Carpenters and Laborers, the Iron Workers, through its Business Representative Takacs, telephoned the Employer and stated "You're not using my men to put steel up on that supermarket " In addition, Takacs said he was going to picket and shut the job down On April 19, approximately 40 pickets appeared at thejob and picketed for a 10-day period As a result of the picketing, the Employer's regular employees and the masons who were employed by a subcontractor refused to cross the picket line We find that the Iron Workers, through its Business Representative Takacs, threatened to picket and picketed the Employer with an object of forcing or requiring the Employer to assign the disputed work to members of the Iron Workers rather than to the Employer's own employees who are members of the Carpenters and the Laborers On the basis of the entire record, we conclude 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 disputed work after giving consideration to various relevant factors The Board has held that its determination in a jurisdictional dispute is an act of judgement based on common- sense and experience, reached by balancing those factors involved in a particular case 3 1 Certification and collective-bargaining agreements The record shows that none of the unions involved herein, nor any other labor organization, has been certified to represent any of the Employer's employ- ees Nor does the Employer now have a contract with the Iron Workers or any other labor organization 4 It is clear from the record that the factors of certifica- tion and contract are not relevant herein 2 Company and industry practices The record shows that the Employer's employees, two of whom are members of the Carpenters and one of whom is a member of the Laborers, have worked for him for a period of years During this period, the Employer has consistently assigned the disputed work to its employees Only when the Employer is in 3 International Association of Machinists Lodge No 7743 AFL-CIO (J A Jones Construction Company) 135 NLRB 1402 4 The Employer was signatory to an agreement with the Carpenters extending May 1969 to May 1971 IRON WORKERS LOCAL 55 645 need of a crane for jobs involving more than two stories does it subcontract some of the structural steel work A subcontractor who has been used by the Employer in the past for such purposes employs members of the Iron Workers as part of its crew However, even at those times when the Employer hires a crane or subcontracts, his own employees continue to perform some of the disputed work The record establishes that the Employer used members of the Iron Workers to lift mesh and tie reinforce- ment rods on a school job in Toledo, Ohio, in 1969, and that it considers that those employees were not qualified and were inefficient and that their use forced a rise in its construction costs Although the Iron Workers contends that the disputed work is traditionally assigned to ironwork- ers, the record shows that such assignment has not been traditional with this Employer, particularly with respect to construction jobs of two stories or less Moreover, the record does not contain conclusive evidence that other employers involved in the same work have traditionally assigned the disputed work to the Iron Workers It would appear that the factor of company practice favors the assignment of the disputed work to the Employer's employees who are members of the Carpenters and Laborers Accordingly, we find that company practice favors the continued assignment of the work to the Employer's employees 3 Relative skills, economy, and efficiency of operations The record reveals that the Employer's employees have the necessary skills to perform the disputed work and that the ironworkers also possess the necessary skills Although the Employer's employees have not qualified by way of an apprenticeship program such as offered by the Iron Workers, the record indicates that the Employer's employees have gained the necessary skills through years of perform- ing the same tasks for the Employer Hayne, the president of the Employer, testified that he was a certified welder and fully qualified to judge the skills of his employees performing the limited welding jobs on structural steel In addition, Hayne testified that his employees were qualified to install mesh and reinforcement rods and that no special skills were required for these tasks Moreover, Hayne testified that his employees were more efficient in the performance of the disputed work in view of their long experience As to the economy of operations factor, the record shows that the constant availability of the Employ- er's employees to perform the disputed work permits him to bid competitively for work which he could not acquire if he had to hire a crew of seven ironworkers plus a crane operator, as required by the Iron Workers contract, rather than the two carpenters and the laborer who are currently performing the disputed work The Employer also presented evi- dence that the estimate it had received for certain structural steel work from a subcontractor who employed ironworkers was considerably higher in cost than what the Employer was able to perform the job for The Employer's figures showed that the subcontractor using a crane and seven ironworkers estimated that his price, based on 4 hours' work for the job, would be $460 The Employer subsequently completed the same job with one crane, a carpenter, and a laborer at a total cost of only $72 Thus, it would appear that the factor of economy favors the assignment of the disputed work to the Employer's employees who are members of the Carpenters and the Laborers Conclusions Having considered all pertinent factors, we con- clude that the factors, including company practice, economy, and efficiency of operations, favor award- ing the work to the employees of the Employer who are presently performing the disputed work, and we shall determine that they are entitled to perform the work in dispute Accordingly, on the basis of the entire record, we shall determine the existing jurisdictional controver- sy by awarding to the employees presently employed by the Employer, rather than to members of the Iron Workers, the work of erecting structural steel, laying steel mesh, installing reinforcing rods and founda- tions, and installing roof sheeting at the construction site at Latham's Super Market in Genoa, Ohio In making this determination, we are assigning the work to the employees who perform the disputed work for the Employer and not to any union which may represent them or to 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 1 Employees of E H Hayne Co, Inc, who are currently performing the disputed work are entitled to perform the work of erecting structural steel, laying steel mesh, installing reinforcing rods and foundations, and installing roof sheeting at the construction site at Latham's Super Market in Genoa, Ohio 2 International Association of Bridge, Structural and Ornametal Iron Workers Local No 55, 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require E H Hayne, Co, Inc, to assign such disputed work to ironworkers represented by that labor organization 3 Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Bridge, Structural and Ornamental Iron Workers Local No 55 , AFL-CIO, shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring E H Hayne Co, Inc, by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members rather than to employees who are presently working for the Employer and who are members of the Carpenters and the Laborers