Local 405, Iron Workers

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reinforced Rod Setters, Local 405, International Association of Iron Workers, AFL-CIO and Glas- gow, Inc. ; Contractors Association of Eastern Pennsylvania; and The Nyleve Company and Laborers District Council of the Metropolitan Area of Philadelphia and Vicinity, International Hod Carriers Building and Common Laborers of Ameri- ca. Case 4-CD-321 February 26, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Contractors Association of Eastern Pennsylvania,' Glasgow, Inc.,2 and The Nyleve Company,3 alleging that Reinforced Rod Setters, Local 405, International Association of Iron Workers,4 had violated Section 8(b)(4)(D) of the National Labor Relations Act, as amended. A hearing was duly held before Hearing Officer Jeffrey C. Falkin on August 16 and on October 2 and 5, 1973. The Association, Glasgow, Nyleve, Iron Workers, and Laborers District Council of the Metropolitan Area of Philadelphia and Vicinity, International Hod Carriers Building and Common Laborers of America,5 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, the Association, Glasgow, and Nyleve filed a joint brief and Iron Workers filed a separate brief, both of which have been duly considered. 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, the Board makes the following findings: 1. THE BUSINESS OF GLASGOW The parties stipulated that Glasgow is engaged in the construction of a new highway and ancillary bridges along Highway Route 202 in Bridgeport, Pennsylvania, and that Glasgow annually purchases Hereinafter referred to as the Association 2 Hereinafter referred to as Glasgow 3 Hereinafter referred to as Nyleve 4 Hereinafter referred to as the Iron Workers and receives construction materials valued in excess of $50,000 from sources outside of Pennsylvania. We find that Glasgow 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Iron Workers and Laborers are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background Facts Glasgow is the general contractor, pursuant to a $6 million contract let by the Commonwealth of Pennsylvania, in the construction of a highway and bridges on Route 202 at Bridgeport, Pennsylvania. Glasgow retained the highway construction work for itself, but subcontracted the construction of the bridges to Nyleve, which specializes in that type of work. Nyleve in turn subcontracted work to G & H Steel, Inc.,6 which hired the employees represented by Iron Workers. The ironworkers were given the steelwork on the bridges, and Glasgow assigned certain steel-reinforcing work on the approach slabs to its employees represented by Laborers. On June 14, 1973, when Glasgow began work on the bridge approach slabs using laborers, certain employees represented by Iron Workers informed representatives of the Laborers and Glasgow's paving superintendent, Payne, that the laborers were doing work belonging to the ironworkers. Payne initially told the laborers to continue working, but later, trying to avoid any further difficulty or delay on the job, contacted Mr. Dana of G & H and requested some ironworkers to install and tie the reinforcing rods on the approach slabs. Before this request could be acted upon, however, Payne was approached by Joseph Platania, the business agent of Iron Workers, who told Payne to deal directly with that Union and not through Dana. When Platania threatened to shut down the job, Payne directed the laborers to stop working on the approach slabs and to work in other areas. On June 20, Platania directed the ironworkers to walk off the job because as he said, "We have a problem that hasn't been resolved yet, with Glasgow." Following the issuance of an injunction,7 the ironworkers resumed working for G & H and the laborers returned to the work they had 5 Hereinafter referred to as the Laborers 6 Hereinafter referred to as G & H 7 The specifics of the injunction were not disclosed upon the record Only passing reference to such injunction was made by counsel during the 209 NLRB No. 48 LOCAL 405. IRON WORKERS been doing for Glasgow before the work stoppage. The particular approach slab work in this dispute eventually was completed by the laborers employed by Glasgow. B. Work in Dispute The work in dispute involves the assignment of work tasks in the placing and binding together of steel rods used to reinforce the concrete portion of bridge approach slabs. C. Applicability of the Statute In a proceeding under Section 10(k) of the Act, the Board must first be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. Based upon the evidence, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred and that the dispute is properly before us for determination pursuant to Section 10(k) of the Act. We further find no evidence that the Association, of which Glasgow and Nyleve are members, is a party to the procedures for settlement of jurisdictional disputes of the National Joint Board or any other voluntary method of settlement. Therefore, we find this matter to be within the Board's jurisdiction to hear and deter- mine. D. 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 various relevant factors. The following factors are relevant in support of the contentions of the parties herein: 1. Collective-bargaining agreement On May 1, 1971, Laborers entered into a collective- bargaining agreement with the Association which by uncontradicted testimony remains currently in effect. Glasgow, as a member of the Association, is a party to the agreement with Laborers. This agreement sets forth classifications which cover the work of "carry- ing and handling steel and steel mesh" and work related to "relief joints and approach slabs." Labor- ers business manager, Benjamin T. Irvin, testified, without contradiction, that the work in dispute was governed and controlled by these job classifications. Iron Workers has no collective-bargaining agreement with Glasgow. Although there is a current agreement between Iron Workers and G & H, it is not suggested by the testimony nor argued in Iron Workers brief 251 that said agreement has any applicability here. Consequently, we find that the agreement between Glasgow and Laborers favors the assignment to employees represented by Laborers. 2. Company assignment of the work It is undisputed that Glasgow initially assigned the work to its employees who are represented by Laborers. Iron Workers, however, contends that Glasgow's request for ironworkers to do the job, after an Iron Workers representative had made a claim for the work being done by laborers, constituted a reassignment to the ironworkers. Payne testified that he and General Superintendent Minckler decided to replace the laborers with ironworkers to avoid trouble and delays. However, no such assignment was actually made. On these facts, we find that Glasgow's preference in assignment favors the award of the disputed work to its employees who are represented by Laborers. I 3. Company and area practice The record reveals that Glasgow has for a period of at least 20 years assigned the type of approach slab work now in dispute exclusively to employees represented by Laborers. Therefore, we find Glas- gow's consistent practice to be in favor of an award to those employees. Clyde Measey, an administrator with the James D. Morrisey Co., which he asserted to be the largest heavy and highway construction firm in the area of the disputed work herein, stated that it is his company's custom to assign the type of approach slab work in question to employees represented by Laborers. Charlotte Vollmer, the manager and an officer of the L & R Construction Co., which does reinforcing steelwork in the area, and Benny Pino, the business manager of the Iron Workers, both stated that they have known only ironworkers to do this kind of work. Iron Workers contends that it is common practice to include the approach slabs as part of the bridge work contracts, that Iron Workers represents employees performing the bridge work, and that, consequently, area practice supports an award to ironworkers. However, Iron Workers witness Pino testified that bridge contracts some- times include and sometimes exclude approach slabs. On this testimony, we find that area practice is inconclusive and thus not a determinative factor in awarding the disputed work. hearing and by the Hewing Officer in his report. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Skills There is no showing that the work in dispute requires a degree of skills not possessed by laborers. That the ironworkers had the requisite skills to perform the job was not questioned. Consequently, this factor does not favor the employees represented by either Union and is found to be inconclusive. 5. Economy and efficiency Payne testified that three or four laborers could complete a 24-foot approach slab area in approxi- mately 8 hours. Pino stated, without contradiction, that the same amount of work could be done by two ironworkers in 3 to 4 hours, or by one ironworker in 8 hours. However, according to uncontradicted testimony, Glasgow assigns laborers to perform the disputed work during time when they would other- wise be idle during their workday. Consequently, we find that whatever advantage there may be to the use of ironworkers because they can do the disputed work in less time with fewer men is offset by the fact that Glasgow derives more efficient and economical use from its assignment to its employees who are laborers because (1) it can utilize them to do the disputed work as "fill-in work" during the time they cannot perform their usual duties due to breakdowns and the like, and (2) use of laborers eliminates the need for hiring extra men for a limited job and period of time, as would be the case if the assignment were made to ironworkers. Conclusion Based upon the entire record and after full consideration of all relevant factors, we conclude that employees represented by Laborers are entitled to perform the work in dispute. In reaching this conclusion, we have placed weight upon the collec- tive-bargaining agreement between Glasgow and the Laborers, Glasgow's assignment, the established practice of Glasgow in assigning the disputed I approach slab work to its employees represented by Laborers, and the efficiency and economy available to Glasgow by employing laborers on the disputed work during their otherwise unproductive hours. Accordingly, we shall award the work in dispute to employees of Glasgow who are represented by Laborers, but not to that labor organization or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record, the Nation- al Labor Relations Board hereby makes the follow- ing Determination of Dispute: 1. Employees of Glasgow represented by Labor- ers District Council of the Metropolitan Area of Philadelphia and Vicinity, International Hod Carri- ers Building and Common Laborers of America, are entitled to perform the work of constructing concrete bridge approach slabs at the Glasgow, Inc., project in Bridgeport, Pennsylvania. 2. Reinforced Rod Setters, Local 405, Interna- tional Association of Iron Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Glasgow, Inc., to assign the approach slab work as described above to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Reinforced Rod Setters, Local 405, International Association of Iron Workers, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring Glasgow, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it, rather than to employees employed by Glasgow, Inc., who are represented by Laborers District Council of the Metropolitan Area of Phila- delphia and Vicinity, International Hod Carriers Building and Common Laborers of America.