Iron Workers Local Union No. 482

526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers Local Union No. 482 of the Internation- al Association of Bridge, Structural and Ornamen- tal Iron Workers, AFL-CIO and Zapata-Warrior Constructors and International Union of Operating Engineers, Local Union No. 450, AFL-CIO. Case 23-CD-313 excess of $50,000 directly from suppliers located outside the State of Texas. Accordingly, we find 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. November 23, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of a charge by Zapata-Warrior Constructors, hereinafter called Employer, alleging that Iron Workers Local Union No. 482 of the International 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 International Union of Operating Engineers, Local Union No. 450, AFL-CIO, hereinafter called Operating Engineers. Pursuant to notice, a hearing was held before Hearing Officer Robert L. Penrice on August 2 and 3, 1973. All parties 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, briefs were filed by Iron Workers and Employer. 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Zapata-Warrior Con- structors is a division of Zapata Constructors, a Delaware corporation, engaged as a general contrac- tor in the building and construction industry, primarily in the State of Texas. During the past 12 months, it purchased goods and services valued in i It appears from the record that a principal difference between the Linden crane and other makes of tower crane is that the jacking mechanism II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Iron Workers and Operating Engineers are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Facts The Employer is currently engaged in the construc- tion of the University of Texas System Administra- tion Building at Austin, Texas. The parties stipulated that the Employer is a member of the Austin, Texas, chapter of the Associated General Contractors and as a member of this multiemployer association has collective-bargaining agreements with both Iron Workers and Operating Engineers. In the construction of the above building, a Linden tower crane is being utilized. As a building rises through the construction process it is periodically necessary to raise the Linden crane through a jacking process to a higher floor of the building. Part of this jacking process involves the setting up of a hydraulic pump, the connection of certain hoses, and the attachment of jacks to the jacking rod on the crane.' The aforementioned work with the pump, hoses, and jacks is performed prior to that portion of the jacking process when the crane is actually raised. During the latter part of the jacking process, employees repre- sented by Operating Engineers manipulate the controls on the crane and the hydraulic pump. At the time the crane arrived at the construction site herein, employees represented by Iron Workers were assigned the work of removing the crane from the truck which transported it and erecting the crane. The operation of this crane was assigned to employ- ees represented by Operating Engineers after it had been set up. On or about June 1, 1973, the Linden crane was raised for the first time on this project and employees represented by both Iron Workers and Operating Engineers participated in the jacking process. However, the record is unclear as to which of the various functions were performed by the employees represented by these two labor organiza- tions. This crane was raised for the second time on or about June 23, 1973. On the day prior thereto, the Employer's project superintendent, E. S. Whitaker, is permanently mounted on other makes of such cranes, while it is attached as needed and then removed from the Linden crane. 207 NLRB No. 86 IRON WORKERS LOCAL UNION NO. 482 527 informed Iron Workers that no employees represent- ed by it would be used in the jacking process. Iron Workers protested this decision and urged that a crew made up of equal numbers of employees represented by it and Operating Engineers be used with the latter manipulating the crane and pump controls and the former doing the work in dispute described below. The parties stipulated for purposes of this proceeding only that thereafter a work stoppage occurred because of the assignment of the work in dispute to Operating Engineers. B. The Work in Dispute The parties stipulated that the work in dispute here is that portion of the jacking process of the Linden crane that consists of the placement of the hydraulic pump, the connection and disconnection of the hoses of the hydraulic pump, and the attachment of the jacks to the jacking rod on the crane at the University of Texas System Administration Building Construction site in Austin, Texas. C. Contentions of the Parties The Employer contends that the work in dispute should be performed either-by employees represent- ed exclusively by Operating Engineers, as it has assigned it, or by a composite crew consisting of employees represented by both Operating Engineers and Iron Workers. It has not elaborated on the precise composition of the latter or which of the disputed work functions should be performed by employees represented by Operating Engineers and which by employees represented by Iron Workers. The Employer further contends that its assignment of the disputed work exclusively to employees represented by Operating Engineers was justified by its collective-bargaining agreement with that labor organization, its past practice and the area practice respecting similar work, and its belief that the work would be performed more safely and efficiently by these employees. Operating Engineers contends the work in dispute should be performed by a composite crew made up of employees represented by it and Iron Workers. This contention appears to be based on the area practice respecting similar work. It has not specified the exact makeup of this crew or which of the disputed work tasks should be performed by employ- ees represented by it and which by employees represented by Iron Workers. Iron Workers contends that the disputed work should be performed exclusively by employees represented by it because of the area practice regarding the identical work on the Linden crane and similar work on other types of tower cranes. 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, and that there is no agreed-upon method for the voluntary adjustment of the dispute. The parties have stipulated that, for purposes of, this proceeding only, a work stoppage occurred as a result of the Employer's assignment of the work in dispute to employees represented by Operating Engineers. The parties also stipulated that there are no grievance, arbitration, or mediation provisions for resolving this dispute. None of the parties contends there is an agreed-upon method for the voluntary adjustment of this dispute. Accordingly, the matter is properly before the Board for determination. 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. The following factors are relevant in making a determina- tion of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective- bargaining representative for a unit of the Employ- er's employees. As a member of Associated General Contractors, Austin Chapter, the Employer has separate collec- tive-bargaining agreements with ' both Operating Engineers and Iron Workers. Its current contract with Operating Engineers provides, inter alia, that "Engineers shall install or remove all attachments or parts of all equipment operated by Engineers when same is done on the job." Although Whitaker, the Employer's project superintendent, testified that he relied, in part, on the Employer's collective contract with Operating Engineers in making his decision to assign the work in dispute exclusively to employees represented by that labor organization, Operating Engineers has not taken the position th at this contract either compels or warrants this work assignment. Indeed, as heretofore rioted, Operating Engineers does not contend that employees repre- sented by it should exclusively perform the,disputed work. None of the parties has made any contentions regarding the applicability of the collective-bargain- ing agreement between the Employer and Iron Workers to the work in dispute. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Employer's assignment and past practice As stated, the Employer assigned the disputed work to employees represented by Operating Engi- neers. This was the first time that Project Superin- tendent Whitaker had ever made an assignment of work involving a Linden crane. In addition, this project is only the second one on which Whitaker has worked where a Linden crane has been used. The record herein does not contain evidence regarding this Employer's past practice concerning the assignment of the disputed work. 3. Area practice Much of the evidence adduced at the hearing in the instant proceeding concerned area practice. The parties stipulated that the relevant geographic area for purposes of this proceeding is the area covered by the collective-bargaining agreement between Iron Workers and the Associated General Contractors, Austin, Texas, chapter, of which the Employer is a member. It appears that a Linden crane had been used in the construction of a building for the first time in the relevant area about 10 years earlier when a Federal office and post office building was erected in Austin. It appears that the work in dispute was generally performed by employees represented by Iron Work- ers on that job. Between the time of that first occasion when a Linden crane was used in this area and the date of the project involved in the instant case, there appear to have been about 9 or 10 construction jobs where Linden cranes have been utilized. Iron Workers adduced uncontradicted testimony at the instant hearing that on all of these projects the work in dispute was performed exclu- sively by employees represented by it. As noted above, Project Superintendent Whitaker had never made an assignment of work involving a Linden crane prior to the instant occasion and had worked on only one other project where a Linden crane was used. His only apparent attempt to determine the area practice concerning the, disputed work herein was to telephone the manager of a nearby construction project where tower cranes were being used. However, those tower cranes were not Linden cranes. They were tower cranes that had the jacking mechanism permanently mounted on the crane. Consequently, the work in dispute herein was not being performed on that project. The manager of that project testified, but he did not state that he gave Whitaker any information concerning the area practice with respect to work assignments involving a Linden crane. 4. Relative skills, safety, and efficiency and economy of operations The record evidence indicates that employees represented by the two labor organizations involved herein are equally skilled to perform the work in dispute and safety considerations would not favor one group over the other. Although Whitaker testified that in his opinion the work in dispute could be performed more efficiently by employees represented by Operating Engineers, there is insufficient record evidence to support a finding that either group could perform the disputed work more efficiently than the other. However, it does appear that employees represented by Iron Workers have substantially greater experience in the performance of the disputed work. Conclusions Upon the entire record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees represented by Iron Workers are entitled to perform the work in dispute. We reach this conclusion upon the facts that this assignment is consistent with area practice, there is no evidence of a contrary past practice by this Employer, and the employees represented by Iron Workers possess the requisite skills to perform the work. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the University of Texas System Administration Building project in Austin, Texas, to the Employer's employ- ees represented by Iron Workers, and not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Lab,r 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 of Zapata-Warrior Constructors who are represented by Iron Workers Local Union No. 482 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, are entitled to perform that portion of the Linden crane jacking process work involving the placing of the hydraulic pump, connecting and disconnecting the hoses of said pump, and attaching the jacks to the jacking rod on the Linden crane at the University of Texas System Administration Building project in Austin, Texas.