Iron Workers, Local No. 465

IRON WORKERS, LOCAL NO. 465 International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 465, AFL-CIO and Hansen & Hempel, Inc. and Brick- layers, Masons and Plasterers' International Union of America, Local No. 37, AFL-CIO. Case 38-CD-91 April 10, 1973 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 Hansen & Hempel, Inc., herein called the Employer, alleging that International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 465, AFL-CIO, herein called Iron Workers, had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing the Employer to assign certain work to employees represented by Iron Workers rather than to employ- ees represented by Bricklayers, Masons and Plaster- ers' International Union of America, Local No. 37, AFL-CIO, herein called Bricklayers. A hearing was held before Hearing Officer James L. Ferree, on December 11, 1972, in Kankakee, Illinois. The Employer, Iron Workers, and Bricklayers appeared at the hearing and were offered 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 entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, an Illinois corporation whose principal office is in Elmhurst, Illinois, is engaged in masonry contracting in and around northern Illinois. In the course and conduct of its business in the past year, it purchased goods valued in excess of $50,000 from suppliers located outside the State of Illinois and caused those goods to be shipped directly to points inside the State of Illinois. Accordingly, we find, as the parties have stipulated, that the Employer 1041 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 The parties stipulated, and we find, that Iron Workers and Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of the erecting or installing of architectural natural stone facing panels on the Kankakee Detention Center, Kankakee, Illinois. B. Background and Facts of the Dispute Azzarelli Construction, Company, a general con- tractor, contracted with Hufschmidt Engineering Company, a manufacturer of prefabricated limestone panels, for the installation of panels onto certain outer walls of the Kankakee Detention Center, Kankakee, Illinois. Hufschmidt, in turn, subcontract- ed the installation work to the Employer. Two-thirds of the panels to be affixed to the wall are single pieces of cut limestone. The remaining third consists of multistone panels backed with reinforced concrete. The single-stone panels are attached to the wall by means of mortaring, bolting, or welding. The multistone panels are attached by means of bolting or welding. All the panels are merely decorative and are not load bearing. In September 1972, at a meeting attended by George T. Hempel, a vice president of the Employer, Henry Stahl, business representative of Ironworkers, and Gino Martini, business representative of Bricklayers, Hempel informed Stahl and Martini that he intended to utilize bricklayers exclusively for the panel installation work. Stahl objected to the proposed assignment as contrary to a 1962 agreement between the Iron Workers and Bricklayers Internationals which, he argued, assigned the work in dispute to a composite crew of ironworkers and bricklayers. Hempel remained adamant in his decision, and the meeting ended without any agreement. According to the testimony of Hempel and Martini, Stahl threat- ened an Iron Workers picket if a composite crew was not utilized.' Another meeting was held in October 1972, with the same people in attendance plus International representatives of both Iron Workers and Bricklayers. Again the subject of a composite I Stahl categorically denies any threats to picket. 202 NLRB No. 158 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crew was discussed, with Hempel remaining steadfast in his intention to use only bricklayers to do the disputed work. Subsequent to this meeting, Hempel was urged by Azzarelli and Hufschmidt to resolve the dispute so as to avoid labor unrest and a possible attendant slowdown of work. At one point, according to Hempel, Stahl told him it would be a long time before the Employer did any more work in this area. Through all this time Hempel's mind remained unchanged. The Employer began the disputed work on November 16, 1972, and has now completed 10 percent of its contract. There is no evidence that Iron Workers has actually picketed. No work stoppages have occurred. There is some evidence of a high rate of absenteeism among ironworkers during the period of the jurisdictional dispute,2 but Jack Suprenant, an assistant manager for Azzarelli, acknowledged that there was similar absenteeism within other crafts as well, and the ironworkers' absenteeism rate was not abnormally high. There is also evidence that Azzarel- li had, during this time, difficulty procuring workmen through Iron Workers. However, Iron Workers insisted that the failure to furnish the requested workmen was due to a temporary shortage of men and was not in any way an indirect attempt to coerce the Employer through Azzarelli. Suprenant also testified that such temporary shortages were not unusual. C. Contentions of the Parties Iron Workers contends that the disputed work should be assigned to a composite crew of equal numbers of ironworkers and bricklayers, as provided for in the 1962 Iron Workers-Bricklayers Agreement. Iron Workers also cites a 1923 Green Book award handed down by the National Joint Board for Settlement of Jurisdictional Disputes as a basis for at least a partial claim to the work in dispute. Iron Workers also claims the requisite skills to do a large portion of the disputed work, and further argues that area practice dictates the use of a composite crew. As the panel facing to be installed is ornamental and nonstructural, the Employer defends its present assignment of the disputed work as consistent with its own and area practice, efficiency, and economy of operation. The Employer also cites a contract between the Mason Contractors Association of America, of which the Employer is an affiliate, and the Bricklayers International which allegedly pro- vides for the Employer's present assignment. 2 Ironworkers have been employed by Azzarelli on the jobsite for tasks unrelated to the work in dispute. 3 Local Union No. 334, Laborers International Union of North America, AFL-CIO (C. H. Heist Corporation), 175 NLRB 608. 4 This agreement was originally executed in 1954 and amended in July Bricklayers supports the present assignment. Brick- layers claims exclusive -jurisdiction over any wall erection work involving natural stone, either in the form of single-stone units or multistone units backed by concrete. The 1962 Iron Workers-Bricklayers Agreement, it argues, applies only to precast concrete walls, not walls with natural stone facing. Bricklayers cites skills, area practice, and the Mason Contractors Association contract to support the present assign- ment. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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. Both Hempel and Martini testified that Stahl of the Iron Workers had threatened to picket unless the Employer assigned the disputed work to a composite crew. Hempel also suggested that Iron Workers withheld craftsmen from Azzarelli as an indirect pressure upon the Employer, through Azzarelli, to reassign the work. All of this was vigorously denied by Iron Workers. The Board is not charged with finding that a violation did in fact occur, but only that reasonable cause exists for finding such a violation. A conflict of testimony does not prevent the Board from proceed- ing under Section 10(k) of the Act. Therefore, without ruling on the credibility of Iron Workers denial, we find that such reasonable cause exists, and that the dispute is properly before the Board for determination.3 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 contracts The agreement between the Mason Contractors Association and Bricklayers International4 defines the work jurisdiction of Bricklayers as that work which had traditionally been assigned to Bricklayers International as described in the International constitution. The constitution clearly includes the 1969. The agreement has since remained in effect on a year-to -year basis with each party having the option to terminate or recommend modification 60 days prior to the anniversary date of the agreement . As there is no indication in the record that either party has ever exercised its option, we assume this agreement is still in effect. IRON WORKERS, LOCAL NO. 465 1043 setting of all cut stone within the definition of masonry,5 but is silent as to the setting of multistone panels backed by reinforced concrete. The 1962 agreement between Iron Workers and Bricklayers would seem to support Iron Workers claim for a composite crew, at least with regard to the concrete-backed panels. The agreement specifi- cally applies to: the installation and erection of . . . precast, prestressed concrete stone or imitation stone or other fabricated masonry units when installed as wall panels by means of bolting and/or welding to structural steel or concrete frame construction. The parties hereto agree as follows: (3) The plumbing, aligning, leveling and an- choring, including bolting and/or welding shall be performed by a crew composed of an equal number of members of . . . Iron Workers and ... Bricklayers. However, Stahl admitted that the agreement has been violated by both parties in the past so that it was, in Iron Workers' eyes, of doubtful viability. And assuming arguendo that the agreement was continu- ously adhered to by both parties, the Employer never agreed to be bound by it. In view of the foregoing, we find that the factor of contracts does not favor the claim of Iron Workers, but does favor the Employer's present assignment to the extent that it covers the installation of single- stone panels. 2. Employer and area practice The practice of the Employer has been to assign the work of installing stone paneling on ornamental nonstructural walls to workmen who were members of Bricklayers. There was an isolated case where a composite crew of ironworkers and bricklayers was used, but it was, Hempel estimated, 1 job out of 60. As for area practice, both Unions cite examples to support their respective claims. In view of the foregoing, we find that employer practice favors the present assignment and area practice does not favor Iron Workers. 3. Skills, efficiency, and economy of operation Ironworkers appear to have the requisite skills to perform many of the tasks incident to the work in dispute. As noted earlier, all of the multistone panels and some of the single-stone panels are attached to the wall by means of bolting or welding. Iron workers are proficient in this area. Iron Workers also claims that its members are proficient in the area of plumbing and leveling of panels. The only area of the disputed work in which Iron Workers does not claim any skill is the task of mortaring. Bricklayers appear to possess sufficient skill to perform all the work in dispute, although none of its members were, until recently, certified as welders. However, Bricklayers claims that many of its members have possessed the requisite welding skills for years. We find that the factor of skill favors neither the present assignment nor an assignment to a composite crew. With regard to efficiency and economy of opera- tions, the record disclosed that the bulk of the stone paneling to be installed is of the single-stone variety, and this installation involves mortaring work which bricklayings can do more skillfully. While ironwork- ers are skilled at rigging, aligning, bolting, and welding of concrete-backed multistone panels, there would not be enough work in this area to keep them busy all the time. As members of a composite crew, either they would become idle or would help to install the single-stone panels, a task for which they are not as skilled as bricklayers. Also, Hempel testified that he has experienced costly time delays due to bickering between the two Unions when he used a composite crew on a precast concrete project. In view of the foregoing, we find that the factors of efficiency and economy of operation favor the Employer's assignment. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by Bricklayers are entitled to ' perform the work in dispute. This assignment is consistent with contracts, employer practice, efficiency, and econ- omy of operation. In making this determination, we are awarding the work in question to employees represented by Bricklayers, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. 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 the Employer who are currently 5 See Constitution and Rules of Order, Bricklayers, Masons, and Plasterers' International Union of America, art. XI, sec. 3 (adopted September 4, 1970). 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by Bricklayers, Masons, and Plasterers' International Union of America, Local No. 37, AFL-CIO, are entitled to erect and install architec- tural natural stone facing panels on the Kankakee Detention Center, Kankakee, Illinois. 2. International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 465, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the above work to its members or employees whom it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organiza- tion listed in the previous paragraph shall notify the Officer-in-Charge for Subregion 38, in writing, whether or not it will refrain from forcing or requiring Hansen & Hempel, Inc., by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the work awarded above in a manner inconsistent with the above determination.