Local 361, Iron Workers

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 361, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO and Concrete Casting Corp. and New York District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 29-CD-153 February 19, 1974 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 , based on a charge filed by Concrete Casting Corp., herein called the Employer. The charge alleges that Local 361, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, herein called Iron Workers , violated Section 8(b)(4)(D) of the Act by engaging in certain activity in order to force the Employer to assign certain work to individuals represented by Iron Workers rather than to employees of the Employer represented by New. York District Council , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Carpenters. A duly scheduled hearing was held on August 6, 7, 8, and 9 , 1973, and September 12, 13, 21, and 25, 1973 before Hearing Officer Beatrice Kornbluh. 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 the Employer and Iron Workers. 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 , giving due consideration to the briefs , the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is a New York corporation, having its principal office in New York City, engaged in the I While the Employer refers to itself as a "turnkey" operation which supplies a complete building, it was not the general contractor on the jobsites at which the dispute arose, and there was testimony that, although the Employer employed only carpenters , employees in other building trades, who were not employed by the Employer, worked on the buildings. Furthermore, we have not satisfactorily been able to ascertain from the record whether the installation of interior partitions, which Iron Workers says it does not claim but which is arguably in dispute nonetheless, is construction industry. During the year preceding the hearing, which period is representative of its opera- tions generally, the Employer received within the State of New York goods valued in excess of $50,000 directly from suppliers located outside the State of New York. We find, as the parties have stipulated, that the Employer is an employer within the meaning of Section 2(2) of the Act. We further 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 purposes of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Iron Workers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The parties were unable to agree on the precise definition of the work in dispute and, although the dispute apparently extends to the entire job done by the Employer on the buildings in question, the extent of the job itself is not fully clarified by the record.' The record does reveal that the work involved can be described as the erection and installation of one- story and one-story-plus-mezzanine prefabricated buildings having a framework of lightweight structur- al steel and prefinished metal siding, which buildings come in factory-manufactured sections which are assembled on the jobsite.2 B. Background and Facts of the Dispute The Employer was incorporated in 1967 and began business with precast concrete and steel construction. In 1971, it became a dealer for Star Manufacturing Co., one of several firms which provide prefabricated parts for the type of building involved here. As a dealer, the Employer's principal, Frederick Olsen, worked with contractors who were preparing bids and doing the actual construction with Star materials ordered through and with the advice of Olsen. From his contact with the jobs undertaken and completed by these contractors, who employed ironworkers represented by Iron Workers and its sister locals, Olsen, who was himself a carpenter by trade, decided actually performed by carpenters employed by the Employer. 2 The term "pre-engineered" appearing in the record has, as do other terms in this record, different meanings to different witnesses, all supposedly experts in the construction industry. The term "temporary," also used in connection with these buildings, we also eschew as nondescriptive. The geographical extent of the dispute is discussed below under the heading, "Scope of Award." 209 NLRB No. 30 LOCAL 361, IRON WORKERS 113 that it would be more profitable for his company to erect the buildings itself, employing carpenters. At the date of the hearing, the Employer had completed six buildings in this manner, all in New York City. Three relatively small structures were built for Consolidated Edison for such uses as storage. The three other buildings, relatively larger, are the focus of the dispute. They are multiple- classroom units, designed to contain between 6 and 10 classrooms, apparently additions to existing schools, all built to the specifications of the New York City Board of Education. The distinguishing feature of these larger structures which make their construction the bone of contention is that the roof and exterior walls are supported by a framework of structural steel Which is erected separately before any of the solid sections are erected or installed. The typical earlier pattern for prefabricated construction in this metropolitan area called for exterior wall sections with self-contained structural support only. The record shows that Iron Workers protested, during their construction, the use of carpenters to construct all three of the multiple-classroom units. As the evidence of the protests at the first two jobsites was introduced only as background informa- tion regarding the dispute involved, it will be sufficient to set forth here that the protests were made known to the Employer and to representatives of Carpenters. The third of these classroom units constructed by the Employer was at P.S. 70, in the Borough of Queens. Construction began there on May 14, 1973, and on May 16, Iron Workers President and Business Agent Simmons approached the site with two other men, and Simmons had a conversation with a crane operator on the job who was represent- ed by a local union of the Operating Engineers. Simmons told him Iron Workers was having a problem with carpenters being on the job instead of ironworkers, and that it was going to have to do something about it. The two other men began picketing. One picket sign said, "Local 361, Iron Workers, AFL-CIO, Iron Workers Protesting Erection of Steel By Carpenters" and a second said "Iron Workers Protesting Erection of Steel By Carpenters. Local 361, Iron Workers, AFL-CIO." Picketing continued through about the end of the working day on May 17. The crane operator refused to work on May 16 after the picketing began and until about 9:45 a.m. on May 17, when a representa- tive of his own union advised him by telephone to return to work. Simmons also told some plumbers at S We reject the contention made by Iron Workers in its brief that the reaffirmation since the hearing by the two International unions, of the division of labor set forth in their earlier agreement , discussed infra, has mooted the dispute the jobsite that he was having a jurisdictional problem with the carpenters. C. Contentions of the Parties The Employer contends that a jurisdictional dispute exists and that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. It further contends that the disputed work should be awarded to employees represented by Carpenters on the basis of its collective-bargaining agreement with Carpenters, its assignment of the work, past practice, economy and efficiency, and the relative skills of the craft groups involved. Carpenters takes no position on whether a violation of Section 8(b)(4)(D) has occurred, but agrees that the work should be assigned to employees it represents, for essentially the same reasons asserted by the Employ- er. Iron Workers contends that no jurisdictional dispute exists which is cognizable under Section 10(k) of the Act because there is no evidence to sustain a reasonable belief that it has violated Section 8(b)(4)(D).3 Should a statutory dispute exist, Iron Workers contends that employees represented by it should be awarded the work by virtue of an interunion agreement between the parent organiza- tions of Iron Workers and Carpenters, respectively, to which the Employer is bound by a provision in its agreement with Carpenters, and on the basis of area and trade practice, safety, and relative skills. 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 voluntary adjustment of the dispute. The threshold standard of "reasonable cause to believe" does not require the same degree of proof as is necessary to establish the actual commission of an unfair labor practice in violation of Section 8(b)(4)(D).4 Considered in this light, we have no difficulty in finding a reasonable probability that the picketing with signs patently protesting the assign- ment of the work to carpenters, and the conversa- tions Simmons had with other employees at the jobsite, which together actually caused the crane operator to refuse to work , were in fact designed to cause such a work stoppage . This conclusion being adequately based on undisputed evidence, we need i Southern California Pipe Trades District Council No 16, Plumbers & Steanifitters Local No 582 (Kirnstocl Division. Tridair Industries. Ine ), 198 NLRB No. 182 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not address ourselves to disputed testimony regard- ing the content of conversations Simmons had with employees. Our further conclusion that this action was probably aimed at forcing the Employer to change its work assignment is buttressed by the fact that protests were lodged over the work assignments at both of the Employer's previous multiple-class- room unit jobs. Although Iron Workers claims that an interunion agreement controls the merits of the dispute herein, there is no contention that an agreed-upon method exists for its voluntary adjustment. Accordingly, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before the Board for determination under Section 10(k). 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 involved. The following factors are relevant in making a determination of the dispute before us: 1. Collective-bargaining agreement The Employer has had collective-bargaining agree- ments with Carpenters since 1968. The current agreement, which was in effect at the time all the buildings involved here were erected, contains the following jurisdictional provisions which appear to pertain to the work in dispute: The term "CARPENTER" and the term "JOINER" are synonymous, and in either case shall mean one who pre-fabs or constructs forms for footings or foundations of houses, buildings, structures of all descriptions, whether made of wood, metal, plastic or any other type of material, the erecting of structural parts of a house, building, or structure made of wood of 5 any substitute such as plastics or composition materi- als, who puts together roofs, partitions, fabricates or erects forms for decking or other structural parts of houses, buildings, or any structure, and dismantling of all forms. * the erecting and installation of Stran Steel or similar material. .. ." 5 Comparison with the prior agreements makes It clear that the word "of." where it appears here in the current agreement, is a typographical error and should he "or." 6 Stran Steel is a trade name for a structural steel similar to the product used by the Employer The Employer has no collective-bargaining agree- ment with Iron Workers. 2. lnterunion agreement Carpenters and Iron Workers are affiliated with, respectively , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO. These two parent organi- zations currently have, and apparently as far back as 1959 have informally maintained, a jurisdictional agreement containing the substance of the following provision of the current agreement under the heading "Stran Steel:" 7 On Rigid Frame Building, the Iron Workers shall erect the structural steel members (columns, trusses, purlines, or girts when structural mem- bers) and the exterior metal sheeting or metal paneling. The Carpenters shall erect any nailable stran-steel members. Iron Workers maintains that this agreement is applicable to the work in dispute and, further, is binding on the Employer because of the following provision in the Employer's collective-bargaining agreement with Carpenters: The Employer agrees to recognize the jurisdic- tional claims of the United Brotherhood of Carpenters and Joiners of America that have been established in its constitution by agreements with other crafts, or as the result of decisions by the National Joint Board for the Settlement of Jurisdictional Disputes, also all work performed by the Union according to past and prevailing practices.8 Whether the interunion agreement is applicable on its face to the work in dispute depends in the first instance on the meaning of the term "Rigid Frame Building" within the contemplation of the agree- ment. Iron Workers presented no evidence as to this and, although several witnesses testified that they thought every building was a rigid frame building, the Employer's principal was the only witness who claimed to recognize the term as a technical, or engineering term. He described one of the buildings in dispute as not being wholly a rigid frame building as he understood the term." There was also testimony that even structural members of these buildings are "nailable." If this See fn 6..supra Emphasis added to focus on Iron Workers contention " A witness for ironworkers testified that he had erected buildings of the same type and referred to them as "rigid frame." but did not attempt to explain what this meant LOCAL 361, IRON WORKERS were true the agreement would be ambiguous insofar as it purports to give the structural work to the Iron Workers and the nailable parts to the Carpenters. It would appear that, at most, the interunion agreement applies to part of the work in dispute, inasmuch as it divides the erection of buildings between the Iron Workers and the Carpenters. This in itself is a factor diminishing somewhat the persuasive weight of this agreement.i° Nor would the agreement, carry significant weight absent a finding that the parties herein agreed to abide by it.' i Contrary to Iron Workers contentions, we find that they did not. Iron Workers seeks to characterize itself as, in effect, a third-party benefici- ary of the provision in the collective-bargaining agreement between the Employer and Carpenters whereby the Employer agrees to recognize the jurisdictional claims of Carpenters' parent organiza- tion established by agreement with other crafts. Under its interpretation of this provision, Iron Workers argues that both the Employer and Carpen- ters, the latter by virtue of the Constitution of its parent organization, are bound to honor the interun- ion agreement between the United Brotherhood (Carpenters) and the International Association (Iron Workers). While Carpenters admits it is bound by the interunion agreement, it denies that the agree- ment covers the work in dispute, a matter on which considerable evidence was adduced, none of it, as suggested above, outstandingly probative. What is clear is that Carpenters does continue to claim the work and apparently no sanctions have been handed out to it for persevering. More directly to the point, Carpenters agrees with the Employer that their collective-bargaining agreement does not bind either of them to any agreement purporting to award jurisdiction to a craft other than those represented by Carpenters. We do not read it that way either. 3. Employer and area practice Iron Workers relies heavily on area practice in support of its claim to the work in dispute and has made a substantial showing in this regard. Aside from the Employer, who has been erecting the type of structure involved here since 1972, it would appear, although the record could be clearer, that all of the other contractors, erecting the type of prefabricated metal building large enough to require a distinct steel frame structure, used employees represented by Ironworkers and its sister local, Local 40, in the Metropolitan New York area. Eight such contractors were named in various parts of the 10 See United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Stearnfiitters Local Union .No 420, AFL CIO (A J Cindrich, Inc), 198 NLRB No 38 115 record, and it is clear, from the testimony and from the list of jobs obtained from just one of them, that their combined total share of the business has up to now far exceeded that of the Employer. Among other things that are not clear, however, is the extent to which the practice is for ironworkers to complete all of the steps in the work in dispute. The one contractor who testified for Iron Workers, for an instance, explained that while his employees who are represented by Iron Workers (Local 361) did all the work, when he was operating within the jurisdiction of Local 40 his agreement required him to employ sheet metal workers to install the roof. Also militat- ing against the existence of a well-established area practice is the fact that the specific type of building involved here apparently has only been constructed in the area since around 1970, and these multiclass- room units have to some extent technologically replaced smaller prefabricated classroom units, also made of metal, but without a separate frame, which were constructed by carpenters. 4. Economy, efficiency, relative skills, and safety Considerable testimony regarding these factors was relatively inconclusive on the record as a whole. With regard to economy and efficiency, it boiled down to the Employer, who was a carpenter by trade, thinking that he could achieve more economical and efficient operations by using carpenters, and having some success in competitive bidding and completions of buildings in this manner. On the other hand, contractors accustomed to working with ironworkers have continued to do so, have continued to bid competitively, and have completed the work to the apparent satisfaction of the parties concerned. Expert testimony was adduced on both sides with regard to the relative quality of the work done by the carpenters and the ironworkers, leaving us with the impression that neither was, as a group, significantly superior. It might be noted that each of the crafts has, in comparison with the other, more general experience with certain parts of the work in dispute. For example, ironworkers apparently have more experience, in general, in erecting structural steel members, while carpenters as a group tend to be more experienced in installing door and window frames. Both unions conducted training programs which included the use of all the tools and skills necessary to the performance of the work in dispute, including training in handsignals to crane operators to the 11 CL Brick Lavers, Masons, and Plasterers , Local No 15 (J 4 Jonev Construction Company), 181 NLRB 1092 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent necessary, and in the loading and unloading of steel structural members, the principal tasks where safety is a most significant consideration. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees of the Employer who are represented by Carpenters are entitled to the work in question. The collective-bargaining agreement be- tween the Employer and Carpenters and the Employ- er's assignment of the work support this conclusion on the instant record. The somewhat superior showing with regard to area practice in favor of Iron Workers does not, in the circumstances described above, outweigh the other factors, and we are not persuaded by the interunion agreement, also for the reasons set forth above. In making this determination, we are assigning the disputed work to the employees of the Employer who are currently represented by Carpenters, but not to that union or its members. Scope of Award The Employer requests that the Board issue a broad work award covering the geographical area of all of the Metropolitan New York area. Based on Iron Workers protests at other jobsites and its heavy reliance on the interunion agreement and area practice, we agree that the dispute is a continuing one and that it is appropriate that the award cover the jurisdictional area of Iron Workers. But that area is only part of the metropolitan area, and there is no evidence that Iron Workers sister local, Local 40, which has jurisdiction over those parts of the metropolitan area not under Iron Workers (Local 36l's) jurisdiction, has violated the Act. Accordingly, our determination will be coextensive with the jurisdictional area of Iron Workers (Local 361). 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 employed by Concrete Casting Corp. who are represented by New York District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work in dispute which consists of erecting and installing at the jobsite prefabricated buildings less than two stories high and having a framework of lightweight structural steel and prefin- ished metal siding, within the territorial jurisdiction of Local 361, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. 2. Local 361, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is not, and has not been, entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer, Concrete Casting Corp., to assign the above work to their members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 361, Interna- tional Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, shall notify the Regional Director for Region 29, in writing, whether or not it will refrain from forcing or requiring Concrete Casting Corp., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to individuals represented by it rather than to employ- ees represented by New York District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO.