Iron Workers Local No 84

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers Union Local No. 84 and Smith Southern Corporation and Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7. Case 23-CD-304 January 8, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the Natior al Labor Relations Act, as amended, follow- ing charges filed by Smith Southern Corporation, herein called the Employer, alleging that Iron Workers Union Local No. 84, herein called Iron Workers or Respondent, has violated Section 8(b)(4)(D) of the Act by seeking to force the Employer to assign the work in dispute described herein to employees represented by it rather than to employees represented by Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7, herein called Bricklayers. Pursuant to notice, a hearing was held in Houston, Texas, on April 17 and April 18, 1973, before Hearing Officer Clayton Corley. 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. There fter, the Employer, Iron Workers, and Brick- layers filed briefs in support of their respective positions. On August 9, 1973, the Board issued a Notice To Show Cause why the Board should not reopen the record to receive certain exhibits prof- fered by Iron Workers and to thereafter find that all parties have agreed to be bound by the National Joi,it Board for the Settlement of Jurisdictional Disputes, herein called the National Joint Board. Thereafter the Employer and Bricklayers filed briefs in response. 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. The rulings are hereby affirmed. Upon the entire record in this case, including the, briefs, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is a Texas corporation with offices and principal place of business located at 9142 Scranton, Houston, Texas, where it is engaged in the building and construction industry as a masonry subcontractor. During the past 12-month period, the Employer has purchased goods and materials valued in excess of $50,000 which were shipped directly to the Employer's Houston locations from points located outside the State of Texas. The parties stipulated, and 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Iron Workers and Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. Ill. TILE DISPUTE A. Background and Facts of the Dispute In December 1972, the Employer was awarded a subcontract by the Baxter Construction Company to perform the masonry work, including the installation of precast concrete panels, at the Hildebrandt Intermediate School, Klein, Texas. In connection therewith, the Employer assigned this work to its own employees, represented by Bricklayers. On March 5, 1973, when the Employer initiated work on the project, Iron Workers made a demand for the aforesaid work, and on March 9 began picketing the jobsite. Picketing continued on March 10 and 12, 1973. The picket signs bore the following legend: No Contract Picketing Smith Southern subcontractor on this job does not have a contract with nor employ members of Iron Workers Local 84. There is no dispute between other contractors or subcontractors on this Job. B. The Work in Dispute The parties stipulated, and we find, that the work in dispute involves the unloading, stockpiling, and erection of cast stone panels approximately 4 inches wide, 2 feet 10 inches high, and 15 feet long, which are set in a mortar joint tack-welded at the top of a clip angle. In this connection, Iron Workers, at the hearing, only claimed the power work of rigging, hooking on, signaling, and loading of the cast stone panels. 208 NLRB No. 36 IRON WORKERS LOCAL NO 84 C. The Contentions of the Parties The Employer contends that the Board should confirm its assignment of the disputed work to its employees represented by Bricklayers, since there is no agreed-upon method for resolution of this dispute. The Employer argues that the Board should rely on such factors as its contract with Bricklayers covering the disputed work, which reflects its personal preference; its past practice of assigning the work to bricklayers; and the fact that bricklayers can perform the work more safely, skillfully, economical- ly, and efficiently than ironworkers. Bricklayers position is substantially the same as the Employer's. Iron Workers argues that its picketing at the jobsite does not give rise to a jurisdictional dispute cogniza- ble by the Board since all of the parties to this dispute are bound by agreements providing machin- ery for the adjustment of jurisdictional disputes. Alternatively, Iron Workers urges that the relevant factors favor an award to employees it represents. 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 (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon methods for the voluntary adjustment of the dispute. As to (1) above, the parties stipulated that on March 5, 1973, Iron Workers made a demand upon the Employer to reassign the work in dispute to ironworkers, and that thereafter on March 9, 10, and 12, Iron Workers picketed the jobsite. Based on the foregoing and the record as a whole, we find reasonable cause to believe that an object of the Iron Workers picketing was to force or require the Employer to assign the disputed work to employees represented by Iron Workers. Accordingly, we find that reasonable cause exists to believe that the picketing of Iron Workers violated Section 8(b)(4)(D) of the Act.' With respect to (2) above, following the close of the hearing, Iron Workers proffered two exhibits: one showing that the Employer had designated the Houston Chapter of the Associated General Con- tractors, herein called the Houston Chapter, as its negotiating representative for jobsite labor agree- ments with Iron Workers; 2 and the other showing that Iron Workers and Bricklayers were bound to the i Bricklayers & Stonemasons Union Local No 3 of Arizona (Concrete Erection). 195 NLRB 232 2 At the hearing the Employer denied having designated the Houston Chapter as its bargaining representative and Iron Workers motion was based on newly discovered evidence contradicting the denial. 3 We note that the National Joint Board for the Settlement of Jurisdictional Disputes was terminated on September 30, 1969. Thereafter, 209 Joint Board procedures by their membership in the AFL-CIO Building and Construction Trades De- partment.3 In response to our Notice To Show Cause, the Employer now stipulates that on February 23, 1972, it did in fact designate the Houston Chapter as its collective-bargaining representative to negotiate job- site labor agreements with Iron Workers, and that on April 1, 1972, the Houston Chapter and Iron Workers executed a collective-bargaining agreement which provides in relevant part: Craft Jurisdiction The work of Ironworkers and other labor that the Union may lawfully represent shall be all work recognized as such by the Building and Construction Trades Department, AFL-CIO, and the National Joint Board for the Settlement of Jurisdictional Disputes. Procedural Rules and Regulations of the National Joint Board for the Settlement of Jurisdictional Disputes of the Building and Construction Trades Department AFL-CIO shall be considered a part of this Agreement as though set forth at length. Contractors subletting work shall stipulate that subcontractors be bound by the above named procedural rules. In the event a jurisdictional dispute shall arise, such dispute shall be settled in accordance with the practice of the Building and Construction Trades Department, AFL-CIO, and the National Joint Board for the Settlement of Jurisdictional Disputes, or any agency established by law or mutual agreement to settle such disputes. There will be no stoppage of work because of a jurisdictional dispute. [Emphasis supplied.] Respondent urges that the foregoing contractual provision binds the Employer to the National Joint Board procedures. We disagree. The parties' contractual language, written in the disjunctive, provides that any jurisdictional dispute arising between the parties can be submitted either to the Joint Board or to other forums, i.e., in the words of the contract, "to any agency established by law or mutual agreement to settle such disputes." Hence, the contractual language does not require the Employer to submit the instant dispute to the Joint Board. Furthermore, that the parties intended Joint Board submission to be wholly voluntary is consist- an interim agreement between the Building and Construction Trades Department. AFL-CIO, and certain contractors' associations extended the Joint Board procedure until February 28, 1970 On April 3, 1970, a new National Joint Board for Settlement of Jurisdictional Disputes (hereinafter called the second Joint Board) was established On June 1, 1973, a third Joint Board, the New Impartial Jurisdictional Disputes Board , hereinafter called the New Impartial Joint Board, came into existence 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent with the AGC's, Houston Chapter's, and the Employer's failure to sign the New Joint Board of New Impartial Joint Board agreements.- According- ly, as the parties' agreement does not provide that the Joint Board is the exclusive forum to resolve disputes of this kind , and is at best ambiguous on this issue, we find that there is no agreed-upon method for the resolution of this dispute and that the dispute is properly before the Board.5 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 all relevant factors. As the Board has stated, its determination in a jurisdic- tional dispute case is an act of judgment based upon commonsense and experience in the weighing of these factors.(; 1. Certifications Neither of the labor organizations involved herein has been certified by the Board as the collective- bai gaining representative for a unit of the Employ- er's employees. 2. Collective-bargaining agreements There is of record a 1962 agreement between Iron Workers and Bricklayers which would seem to lend support to Iron Workers claim for a composite crew to do the installation and erection of all types 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 framed construction. This agreement, inter alia, gives Iron Workers the work of rigging, hooking on, signaling, and loading. Howev- er, George A. Miller, executive vice president of the Mason Contractors Association of America, testified that the Masonry Contractors Association, which numbers 1,500 members, is not a party to this agreement and has not abided by it.7 Miller further testified that, based on his experience nationally in the masonry contract field, the disputed work is traditionally performed by bricklayers with the help 4 On the present record we find no evidence that the AGC, the Houston Chapter, or the Employer participated in the negotiation or execution of the interim agreement, the reconstituted (second) Joint Board agreement, or the New Impartial Joint Board agreement Nor is there any evidence that any of these parties have agreed to, or expressed any intention of agreeing to, refer jurisdictional disputes to the New Impartial Board See Bricklayers, Masons and Plasterers' International Union of America, Local No 1, AFL-CIO (Lembke Construction Company of Colorado, Inc), 194 NLRB 649 5 The Employer is also a member of the Masonry Contractors Association , which has an agreement with Bricklayers however. that agreement makes no reference to the resolution of disputes by the Joint Board of the cement mason tenders who are members of the Laborers International Union.8 It is apparent, therefore, that this agreement generally has not been followed in situations involving the assignment and performance of the type of work in dispute. Moreo- ver, assuming arguendo that the agreement was adhered to by both Iron Workers and Bricklayers, the Employer never agreed to be bound by it.9 In view of the foregoing, we find that little, if any, weight can be given to the Iron Workers-Bricklayers 1962 agreement as a factor in determining the merits of this dispute. 3. Employer practice The practice of the Employer, without exception, has been to assign the disputed work to its own employees represented by Bricklayers, with assist- ance from its own cement masons, who are members of the Laborers International Union. 4. Area practice Turner Smith, president of the Employer, testified that in his experience of over 17 years, covering about 20 to 30 jobs, Iron Workers had never been assigned the work involving the installation, as in the instant case, of small flat type panel. He further testified that local masonry contractors assigned the work in dispute to a crew of bricklayers and an operating engineer. George Miller testified that based on his experience nationally in the masonry contract field, the work in dispute is traditionally assigned to Bricklayers, tended by masons who are members of the Laborers International Union. On the other hand, a witness for Iron Workers, Frank Gunnels, president of the Empire Construction Company, testified that area contractors generally utilize a composite crew to perform the disputed work; however, on cross-examination, he stated that his company had never installed the specific type and nature of the cast stone involved in the instant case. 5. Skills, efficiency, and economy of operation The record reflects that the Employer's own employees, represented by Bricklayers and assisted 6 International Association of Machinictc, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 r Furthermore there is no evidence that the Employer , who is a member of the MCA. has entered into this 1962 agreement. s In addition to its other contracts, the Employer also has an agreement with Laborers International Union for its employees who are members of that union and do part of the disputed work as cement mason tenders. Bricklayers if Stonemacons Union Local No 3 of Arizona (Concrete Erection), 195 NLRB 232; also International Association of Bridge, Structural and Ornamental Iron Workers, Local No 465, AFL-CIO (Hansen & Hempel, Inc ), 202 NLRB 1041 IRON WORKERS LOCAL NO. 84 by mason tenders, members of Laborers Internation- al Union, possess all the necessary skills to perform the disputed work and have always done such work for the Employer satisfactorily. It also appears that ironworkers possess the necessary skills to perform that portion of the disputed work claimed by them. We find, therefore, that the factor of skills favors neither the present assignment nor an assignment to a composite crew. With regard to the efficiency and economy of operations, the record reflects that the Employer employs approximately 45 to 50 bricklayers, 40 mason tenders, and 4 to 5 operating engineers on a year-round basis. In the event one of the Employer's employees, a member of Bricklayers, does not have work to do, he can be shifted to other tasks or to other jobs. Further, bricklayers can perform work in a continuous fashion, whereas ironworkers can be employed only for relatively short intervals of time. On the other hand, the Employer employs no members of Iron Workers. Were we to award a portion of the disputed work to ironworkers, it would appear that the Employer would have to hire an ironworker under a minimum call contract provision and that the Employer would not be able to keep such employee busy the full day, all of which would require delay with the project. Under the foregoing circumstances, it appears that the assignment of the disputed work to the Employ- er's own employees, represented by Bricklayers, is clearly the most efficient and economical manner of operation. Conclusion Upon the entire record in this case, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by Bricklayers are entitled to perform the work in dispute. We reach this conclusion based on the Employer's past practice of assigning the disputed work to its employees; the facts that the assignment is not inconsistent with the practice of area contractors, that the Employer's employees possess the necessary skills and experience to 10 While the Employer and Bricklayers urge the Board to extend its determination to all smular disputes occurring, with some exception, within 211 perform the work, and that such assignment will result in greater efficiency and economy. We shall, therefore, determine the dispute before us by awarding the work in dispute at the Employer's Hildebrandt Intermediate School project 'in Klein, Texas, to those employees represented by the Bricklayers but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding.10 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 Smith Southern Corporation who are represented by Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7, are entitled to perform the work of unloading, stockpiling, and erection of cast stone panels approximately 4 inches wide, 2 feet 10 inches high, and 15 feet long, which are set in a mortar joint tack-welded at the top of a clip angle, at the Employer's Hildebrandt Intermediate School, Klein, Texas, project. 2. Iron Workers Union Local No. 84 is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Smith Southern Corporation to assign the above-described work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Iron Workers Union Local No. 84 shall notify the Regional Director for Region 23, in writing, whether or not it will refrain from forcing or requiring Smith Southern Corpora- tion, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to its members, or employees represented by it, rather than to employees of Smith Southern Corporation represent- ed by Bricklayers, Masons and Plasterers' Interna- tional Union of America, AFL-CIO, Local No. 7. a 100-mule radius of Houston, we find no warrant in this record for such a broad determination