International Association of Bridge, Iron Workers, Local 563

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 563, AFL-CIO and International Brotherhood of Car- penters and Joiners of America, Local No. 361, AFL-CIO and Fabcon, Incorporated and Bricklay- ers, Cement Block, Stone and Marble Masons, Pointers, Cleaners and Caulkers Union No. 2 of Minnesota; Construction and General Laborers Local No. 563, Affiliated with Laborers Interna- tional Union of North America, AFL-CIO; Brick- layers and Masons and Plasterers International Union, Local No. 3, of Duluth, Minnesota, AFL-CIO; Hod Carriers, Building and General Laborers, Local 1091, AFL-CIO.Case 18-CD-161 June 19, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Fabcon, Incorporated, herein called the Employer, alleging that International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 563, AFL-CIO, herein called Iron Workers, and International Brotherhood of Carpenters and Joiners of America, Local No. 361, AFL-CIO, herein called Carpenters, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activities with an object of forcing or requiring the Employer to assign certain work to employees represented by Iron Workers and Carpen- ters rather than to employees represented by Con- struction and General Laborers Local No. 563, affiliated with Laborers International Union of North America, AFL-CIO, herein called Laborers No. 563, and Bricklayers, Cement Block, Stone and Marble Masons, Pointers, Cleaners and Caulkers Union No. 2 of Minnesota, herein called Bricklayers No. 2. Pursuant to notice, a hearing was held before Hearing Officer Morris E. Peterson on January 7-11, 22-25, and February 4-5, 1974. All parties, including the Employer, Laborers No. 563, Bricklayers No. 2, Iron Workers, Carpenters, and Hod Carriers, Build- ing and General Laborers, Local 1091, herein called Laborers No. 1091, and Bricklayers and Masons and Plasterers International Union, Local No. 3 of Duluth, Minnesota, herein called bricklayers No. 3, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-exa- mine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Employer and by the Iron Workers and Carpenters. 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 case, including the briefs of the parties, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is a Minnesota corporation engaged in the manufacturing and installation of prestressed con- crete wall panel, floor slab, and other prestressed concrete products, and, during the 12 months preceding the hearing, the Employer sold and installed goods and materials valued in excess of $50,000 outside the State of Minnesota. Accordingly, we find that the Employer is an employer within the meaning of Section (2) of the Act and 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Iron Workers, Carpenters, Laborers No. 563, Bricklayers No. 2, Laborers No. 1091, and Bricklayers No. 3 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts At the time the dispute herein arose, the Employer was engaged in the erection and installation of precast, prestressed concrete products such as wall panels, floor planks, and stairways, at four locations in the Duluth, Minnesota, area. At three of the four locations, the Employer also supplied the materials. In addition, the Employer was also responsible for various finishing tasks at the four locations. The work to be performed at these locations was assigned by the Employer to composite crews of its employees who are represented by Laborers No. 563 and Bricklayers No. 2. In a telephone call from Iron Workers Business Agent Rawn on November 19, 1973, however, Employer's president, Hansen, was made aware of the desire of the Iron Workers to have its members assigned to erection crews. Rawn 211 NLRB No. 105 INTERNATIONAL ASSOCIATION OF BRIDGE, IRON WORKERS, LOCAL 563 threatened that failure to do so would result in work stoppages on Employer's projects. On November 26, Rawn again called Hansen and demanded that Iron Workers and Carpenters, whose representative, Lindstrom, was then in his office, be assigned to the erection crews. Upon Employer's refusal to comply with the demands of the Iron Workers and Carpenters, both entrances to, one of the four locations, the Ordean site, were picketed on November 29. The sign at each entrance stated, "Fabcon, Inc. is unfair to Carpenters 361, Iron Workers 563." The following day picketing resumed with signs reading, "Fabcon, Inc., has substandard working conditions, does not pay prevailing wage rates, Iron Workers, Local 563, Carpenters Local 361." The picketing continued until December 11 and had the effect of shutting down the Ordean site. In addition, no work was performed during that time period by the Employer at the other three sites although these sites were not picketed or shut down. B. Work in Dispute The work in dispute as described in the notice of hearing consists of all erection and installation of prestressed concrete on all current and future jobs of Fabcon, Incorporated, in the Duluth, Minnesota, area, within the territorial jurisdiction of Iron Workers Local No. 563 and/or Carpenters Local No. 361. The process typically involved in such erection and installation once the products are delivered to the site, with some variation, includes movement of the material, permanent placement, and finishing work. More specifically, the products, such as wall panels, floor planks, and stairways, are moved by cranes run by operators and oilers. Assistance in signaling directions to the crane operator, in the attachment and detachment of spreaders, or in lifting frames to lifting loops, bolted connections, or nylon slings is furnished by the erection supervisor and other employees. After movement, the products are placed, plumbed, aligned, leveled, and temporarily shored where appropriate. Connections, such as of wall panels and floor planks, are pinned, cemented, bolted, and/or welded. In addition, certain finishing tasks such as dry-pack cement work, caulking, grouting, patching, and latexing are then performed. C. Contentions of the Parties The Employer, supported by Laborers No. 563 and I The Employer is a party to a statewide collective-bargaining agreement made between the Laborers District Council of Minnesota and North Dakota on behalf of its affiliated local unions and the multiemployer association of which the Employer is a member. 2 Iron Workers Local No. 563, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Spancrete Midwest 737 Bricklayers No. 2, who claim the work, takes the position that the work should be awarded in accordance with the Employer's assignment. This, it is asserted, is consistent with the Employer's past practice and contract obligations,' and with econo- my, efficiency, skills, and safety. The Employer further contends that such an award should apply to future projects, as well as to present projects in the Duluth, Minnesota, area, citing the propensity of Iron Workers for becoming involved in such jurisdic- tional disputes2 and its own prior difficulties with a different local of the Iron Workers .3 Laborers No. 1091 makes a claim for the work based on Laborers District Council of Minnesota's multiemployer statewide collective-bargaining agree- ment. The record discloses, however, that no repre- sentative of Laborers No. 1091 was signatory to the contract. The record further discloses that members of Laborers No. 1091 have been employed by the Employer to supplement its own crews in the Duluth area. Iron Workers and Carpenters contend that the precast prestressed concrete erection and installation should be performed by a composite crew of ironworkers, carpenters, and bricklayers, assisted by laborers where required. Specifically, Iron Workers and Carpenters contend that the hook, rigging, and signaling involved in movement of the precast, prestressed materials be assigned to ironworkers, that placement, alignment, and leveling of precast floor planks be assigned to carpenters, and that placement of wall panels, particularly where mortar or grouting are required, be assigned to bricklayers to set, plumb, level, align, point, caulk, or secure. The Iron Workers and Carpenters further assert that several factors, including an interunion agreement between the Bricklayers and Iron Workers Internationals, skill and safety, area practice, efficiency, and decisions of the National Joint Board or the new Impartial Disputes Board, would support such an award. Bricklayers No. 3 supports the position of Iron Workers and Carpenters and claims the work of alignment and placement of wall panels. The record discloses that the Employer employs some members of Bricklayers No. 3 at projects herein considered. 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 Company), 175 NLRB 260 ; Iron Workers Local No. 563, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Spancrete Midwest Company), 183 NLRB 1105. 3 Local 512, International Association of Bridge, Structural and Ornamen- tal Iron Workers, AFL-CIO (Fabcon, Incorporated), 203 NLRB No. 177. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believe that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method for the voluntary settlement of the dispute. As stated, it is undisputed that Ironworkers and Carpenters demanded the disputed work and picket- ed the Ordean jobsite in support of their demand. Based on the foregoing and the record as a whole, we find that an object of the threats by Rawn on behalf of Iron Workers and Carpenters and Iron Workers members' picketing was to force or require the Employer to assign the disputed work to employees represented by Iron Workers and Carpenters. The record shows that the Employer is not a party to an agreed-upon method for the voluntary adjust- ment of jurisdictional disputes. We therefore further find that at the time of the instant dispute there did not exist any agreed-upon method to which all parties herein were bound for the voluntary adjust- ment of the dispute. Based on the above, we find 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 the Board for determi- nation under Section 10(k) of the Act. 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 various relevant factors. 1. Certification and collective-bargaining agreements None 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. The Employer does, however, have contracts with Laborers District Council of Minneso- ta and North Dakota on behalf of its affiliated local unions and with Bricklayers Nos. 1 and 2 of St. Paul and Minneapolis, Minnesota, respectively.4 The contracts specifically discuss the work in dispute herein. We therefore find that the collective-bargain- ing agreements favor the Employer's assignment. 2. Company and industry practice The record discloses that it has been Employer's 4 The relevant portion of the Laborers District Council's contract with the Employer provides in art. XIV as follows: A. On beams, columns, floors and roofs, one or more preformed concrete masons shall be integrated with laborers in a construction crew at the discretion of the Employer. B. On wall panels there shall be an integrated crew consisting of members of the Bricklayers and Laborers Unions. (1) The actual setting, plumbing, leveling, pointing, caulking, or grouting shall be performed by two or more masons or pre-cast masons. The balance of the crew shall be composed of members of one or the other of the building laborers Unions. practice to assign erection and installation of precast, prestressed concrete materials to its employees represented by Laborers No. 563 and Bricklayers Nos. 1 and 2. This has also been the practice of other specialty contractors engaged in erection and instal- lation of precast, prestressed concrete materials in the Duluth area. The record further discloses, however, that the practice of general or steel erection contractors in the Duluth area has been to assign the work as requested by Iron Workers and Carpenters herein. Thus, area practice does not clearly favor or disfavor the assignment as made by the Employer. The Employer's past practice, however, does favor the assignment as made. 3. Skills and safety The record discloses that the skills required for the erection and installation of precast, prestressed concrete products are taught to employees of the Employer, if they do not already possess the necessary skills, in training classes, both off the job and on the job. As a result of this training, Employer's employees are able to work in an integrated and interchangeable fashion in the various phases of erection and installation. Iron Workers and Carpenters maintain that their members possess greater skills than do Employer's employees represented by Laborers No. 563 and Bricklayers Nos. 1 and 2 as a result of apprenticeship programs and years of experience. In support of this contention they cite two accidents which occurred on Employer's projects. The record shows, however, that the accidents were isolated in nature. One was the result of bad judgment by experienced personnel, and the other was the result of a faulty lifting loop or panel. Thus, while members of Iron Workers and Carpenters may possess the skills required to perform the erection and installation involved herein, the record does not disclose that Employer's employees represented by Laborers No. 563 and Bricklayers Nos. 1 and 2 do not possess the required skills. The factors of skill and safety therefore support the Employer's assignment. 4. Efficiency and economy of operation As noted above, Employer's employees are trained All welding shall be performed by either qualified masons or qualified laborers who are employed on the crew . The work jurisdiction of construction laborers interchangable and integrated with preformed concrete masons at the discretion of the Employer shall consist of hooking up, erection, grouting, welding, patching, grinding and applying latex floor and other work requirements associated with the work of thejob crew. The relevant portion of the contract with Bricklayers Nos. 102 provides that "one or more performed concrete masons shall be integrated with laborers in a construction crew at the discretion of the Employer." INTERNATIONAL ASSOCIATION OF BRIDGE, IRON WORKERS, LOCAL 563 739 to be familiar with the entire erection process. Therefore, the record discloses, they can be used to help in other areas of erection if materials they may need for their own work are not available at that moment. Thus, the factors of efficiency and resultant economy of operation also favor Employer's assign- ment. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we determine the instant jurisdictional dispute in favor of Laborers No. 563 and Bricklayers No. 2 and conclude that Fabcon's employees, represented by Laborers No. 563 and Bricklayers No. 2, are entitled to perform the work in dispute. The Employer's practice, the collective-bargaining agreements, effi- ciency and economy of operations, and the skills involved favor this result . Our present determination to award the work to the Employer's employees who are represented by Laborers No. 563 and Bricklayers No. 2, but not to those Unions or their members, is limited to the controversy which gave rise to this proceeding. While Iron Workers has been party to similar proceedings with another employer, and while the Employer herein has been a party to a similar proceeding with a different local of the Iron Workers Union, we do not believe that the broad order requested by the Employer is appropriate at this time. 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 in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Fabcon, Incorporated, who are currently represented by Construction and General Laborers Local No. 563, affiliated with Laborers International Union of North America, AFL-CIO, and by Bricklayers, Cement Block, Stone and Marble Masons, Pointers, Cleaners, and Caulkers Union No. 2 of Minnesota, are entitled to perform the work of erection and installation of prestressed concrete on all current jobs of Fabcon, Incorporated, in the Duluth, Minnesota, area. 2. International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 563, AFL-CIO, and International Brotherhood of Car- penters and Joiners of America, Local No. 361, AFL-CIO, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Fabcon, Incorporated, to assign the above work to employees represented by them. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Bridge, Structural and Ornamental Iron Workers, Local No. 563, AFL-CIO, and Internation- al Brotherhood of Carpenters and Joiners of Ameri- ca, Local No. 361, AFL-CIO, shall notify the Regional Director for Region 18, in writing, whether or not they 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 employees represented by Iron Workers and Carpenters, rather than to employees represented by Laborers No. 563 and Bricklayers No. 2.