Local 1191, Laborers' International Union

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 1191 , Laborers' International Union of North America, AFL-CIO and Reinforcing Iron Workers Local Union No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and The Morrison Company. Cases 7-CD-286 and 7-CD-287 February 28, 1974 DECISION AND DETERMINATION OF DISPUTES BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY business and at jobsites located in the State of Michigan goods and materials valued in excess of $50,000 directly from points located outside the State of Michigan. We find that the Employer is engaged in commerce within the meaning 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 Laborers and Iron Workers are labor organizations within the meaning of the Act. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by the Morrison Company, herein- after called the Employer, alleging that Local 1191, Laborers' International Union of North America, AFL-CIO, hereinafter called Laborers, and Rein- forcing Iron Workers Local No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, hereinafter called Iron Workers, violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Charles F. Morris on December 18, 1973. Laborers, Iron Workers, the Employer, and Markward-Karafilis- Blount Brothers, party in interest and the general contractor, hereinafter referred to as Markward, 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 Employer and Mark- ward filed briefs. 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 case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is a Michigan corporation engaged in the business of road construction and other related construction work, with its principal office in Trenton, Michigan. During the fiscal year ending February 28, 1973, the Employer, in the course and conduct of its business operations, had a gross revenue in excess of $1 million and purchased and received at its place of I The disputed work does not include the placement and fitting of reinforcing rods. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is a subcontractor of Markward for the installation of reinforced concrete roads, drive- ways, and parking areas at the United States Post Office Bulk Handling Facility located at Allen Park, Michigan. To perform this type of construction, the Employer performed excavation, rough grading, setting forms, pouring concrete, installing reinforcing wire mesh in the fresh concrete, and finishing concrete. In the normal course of business, the Employer assigned such work to employees repre- sented by Laborers. On September 10, 1973, the Employer, in the presence of representatives of both Laborers and Iron Workers, assigned the work necessary to perform its subcontract to employees represented by Laborers. Shortly thereafter, a representative of Iron Workers advised Employer's president that if the work in dispute was not assigned to ironworkers, he would "not only threaten to give [the Employer] trouble . . . he would promise [the Employer] trouble." Later, on the same day, representatives of Laborers informed Employer's president that the work in dispute belonged to them, and that it was their •intention to resist any attempt to reassign the work. In a letter dated October 12, 1973, Laborers advised the Employer that, if the work in dispute were assigned to employees represented by any other craft, the Union would invoke "procedures to close down [the] job ...." B. The Work in Dispute The parties agree that the work in dispute involves the work of unloading reinforcing wire mesh and supports, placing said mesh and supports adjacent to concrete pouring forms, and placing and fitting said mesh and supports into concrete pouring forms.' 209 NLRB No. 49 LOCAL 1191, LABORERS' INTERNATIONAL UNION C. Contentions of the Parties 1. Employer : The Employer prefers that the work in dispute be assigned to its own employees , who are represented by Laborers . It rests its position on its collective-bargaining agreement with Laborers, com- pany and area practices , economy and efficiency of operations, the Board's Decision in Reinforced Iron Workers Local No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (G. A. Morrison Company), 189 NLRB 187 (1971), and the claim that the unique skills of the Iron Workers members are not necessary. 2. Iron Workers and Laborers : Counsel for the labor organizations involved agreed that the instant case involved the same issues as considered by the Board in G. A. Morrison, supra. However, neither labor organization withdrew its claim to the work in dispute. 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 settlement of the dispute. The record shows, and neither Iron Workers nor Laborers denies, that the labor organizations in- volved demanded the assignment of the disputed work on September 10, 1973. The record also shows that representatives of these two unions threatened to impede the Employer's performance of its subcon- tract. Notably, the record shows that Iron Workers threatened to cause "trouble," which, in light of Iron Workers having caused a cessation of the Employer's performing the same type of work on another job.2 left little doubt as to what kind of "trouble" would follow if the Employer failed to accede to that union's demand.3 Moreover, the record shows that Laborers, by letter dated October 12,'1973, threat- ened to close down the job if the work in dispute were reassigned. On the basis of the preceding, we conclude that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The record further shows that the Employer is not a party to an agreed-upon method for the voluntary adjustment of jurisdictional disputes. Accordingly, 2 G A Morrison, supra at 188-189. 3 Local 388, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United .States (Associated Under- ground Contractors, Inc), 175 NLRB 540, 542 (1969), Local 189, United Association of Journeymen and Apprentices of the Plumbing and Prpcftting Industry of the United States (Kahoc Air Balance Co ), 197 NLRB 159 (1972). 5 See International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No 3, A1•L-CIO (Dickerson Structural Concrete Corporation), 195 NLRE 575 (1972) 311 since the Employer is not so bound, it is unnecessary to consider whether Laborers or Iron Workers is bound by similar procedures.4 It is thus clear, and we find, from the foregoing that at the time of the instant dispute there did not exist any agreed-upon method for the voluntary adjust- ment of the dispute to which all parties herein were bound. Accordingly, the matter is properly before the Board for determination under Section 10(k) of the Act.5 E. Merits of the Disputes 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. 1. Collective-bargaining agreements The Employer has no employees represented by Iron Workers. Nor does the Employer have a collective-bargaining agreement with Iron Workers. On the other hand, the Employer has had a series of collective-bargaining agreements with Laborers cov- ering the work in dispute. 2. Company and area practice The Employer's consistent practice has been to assign the disputed work to Laborers. There is insufficient record evidence as to what the area practice has been with respect to the disputed work. 3. Relative skills, economy, and efficiency of operations The record shows that the employees presently employed by the Employer now possess sufficient skills to satisfactorily perform the work in dispute, and that the Employer is fully satisfied with the productivity and efficiency of its employees and desires to continue assigning such work to them. The record further shows that only a small fraction of the daily work performed consists of the performance of the work in dispute, and that it does not require skills unique to Iron Workers members. Finally, the record shows that if Iron Workers members were assigned the disputed work the productivity and efficiency of the Employer's operations would be impaired since the Employer's regular work force would still be required to perform preliminary tasks not claimed by 5 At the hearing, counsel for Iron Workers asserted that that labor organization was prejudiced "by the lack of some sort of specification, or bill of particulars by the Board such as would normally be contained in a complaint " A 10(k) proceeding is not an unfair labor practice complaint proceeding, and, the notice of hearing issued herein contains a statement of the issues involved in the disputes in compliance with Sec 102.90 of the Board's Rules and Regulations See National Union of Marine Cooks and Stewards (Irvin-Lyons Lumber Company), 83 NLRB 341 (1949). 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers, and, hence, the integrated perform- ance of its work would be fragmented. 4. Prior Board decision should cover not only the specific site where the instant disputes arose, but also all similar sites within the geographic jurisdiction of Iron Workers. Counsel for the labor organizations involved agreed that the instant case is not significantly different from the Board's decision in G. A. Morrison Company, supra.6 Both of the local unions involved herein and Morrison were parties in that case. In that prior decision, the Board awarded the same type of disputed work to Laborers, notwithstanding a con- flicting claim by Iron Workers. While the prior decision is not considered to be determinative, it is to be given significant weight in the consideration of the instant case. CONCLUSION Upon the entire record in this proceeding, and after full consideration of all the relevant factors, in particular the contractual relationship between the Employer and Laborers, the Employer's practice, and the Board's prior decision with respect to such disputed work, we conclude that employees of the Employer who are represented by Laborers are entitled to the work in dispute, and we shall determine the dispute in their favor. We do not, however, award the work to Laborers or its members. F. Scope of Determination In its brief, the Employer urged that the Board issue an award whose scope would encompass all future sites within Iron Workers geographic jurisdic- tion at which the Employer would perform the work in dispute. There is precedent for an award whose scope is broader than that of the specific site involved.? On the basis of that precedent, and in light of our prior decision in G. A. Morrison Company, supra, we hold that the determination in this case DETERMINATION OF DISPUTES 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 Disputes: 1. Employees of The Morrison Company who are currently represented by Local 1191, Laborers' International Union of North America, AFL-CIO, are entitled to perform the work of unloading reinforcing wire mesh and supports, placing said mesh and supports adjacent to concrete pouring forms, and placing and fitting said mesh and supports into concrete pouring forms at the U. S. Post Office Bulk Handling Facility, Allen Park, Michigan, and at other locations within the geo- graphic jurisdiction of Reinforcing Iron Workers Local No. 426, International Association of Bridge. Structural and Ornamental Iron Workers, AFL-CIO. 2. Reinforcing Iron Workers Local Union No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Morrison Company to assign such work to ironworkers who are repre- sented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Disputes, Reinforcing Iron Workers Local No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, shall notify the Regional Director for Region 7, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to ironworkers represented by it. 6 The differences between these cases are not si gnificant In that case , the T Local No 7, International Association of Bridge, Structural and employer was called the G. A Morrison Company, the work in dispute was Ornamental Iron Workers, AFL-CIO (Meade-McGrath Fence Co, Inc), 195 subcontracted by it to Century Cement Company, and the site of the NLRB 1077.1079 (1972) dispute was in Brownstone Township, Wayne County. Michigan.