Iron Workers Union Local No. 84

IRON WORKERS UNION LOCAL NO. 84 721 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-318 July 31, 1974 DECISION AND DETERMINATION OF DISPUTE industry as a masonry contractor. During the past 12 months, the Employer has purchased goods and ma- terials valued in excess of $50,000 which were shipped directly to the Employer from points located outside the State of Texas. The parties stipulated, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ate the purposes and policies of the Act to assert jurisdiction herein. BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Smith Southern Corporation, herein called the Employer, alleging that Iron Workers Union Local No. 84, herein called Iron Workers or Respondent, 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 it represents rather than to employees represented by Bricklayers, Masons and Plasterers' International Union of Amer- ica, AFL-CIO, Local No. 7, herein called Bricklayers. Pursuant to notice, a hearing was held in Houston, Texas, on January 29, 1974, before Hearing Officer William H. Helms. 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, the Em- ployer, Iron Workers, and Bricklayers filed briefs in support of their respective positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this case,' including the briefs, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The Employer is a corporation organized under pertinent statutes in Texas with its offices and princi- pal place of business located in Houston, Texas, where it is engaged in the building and construction i Following the close of the hearing, the Respondent filed a motion for leave to reopen the record herein for the purpose of introducing additional exhibits to be identified as Charged Party's Exhs 3, 4, 5, 6, 7, 8, and 9 The Employer filed a response in opposition to Respondent's motion We hereby deny Respondent's motion because Respondent has not amply justified its failure to present this evidence before the record was closed See Rules and Regulations, Series 8, as amended, Sec 102 48(d)(1) 11 THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Iron Workers and Bricklayers 2 are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute Early in 1973, the Employer obtained a subcontract from the McGregor Construction Company to per- form certain masonry work, including the installation or erection of prefabricated brick wall panels on the Sperry Rand Building in Houston, Texas. On April 23, 1973, the Employer assigned the work involved in performing this construction contract to its own em- ployees represented by the Bricklayers, with necessary assistance to be furnished by employees represented by Laborers. On November 15, 1973, the Iron Work- ers made its initial demand that the Employer award the work to employees it represented, and on Decem- ber 17, 1973, it commenced picketing the worksite. Picketing continued on December 18 and 19, 1973, with the legend on the picket sign reading as follows: Smith Southern is unfair to Iron Workers Local 84 in violation of the joint board agreement. Dis- pute is against no one else. B. The Work in Dispute The disputed work concerns the unloading, stock- piling, and erection of preassembled brick wall panels on the Sperry Rand Building fob in Houston, Texas. These wall panels, numbering in excess of 200, are in varying dimensions, e.g., 9 feet by 8 feet; 4 feet by 30 feet; and 7 feet by 30 feet; and they are installed by being set in mortar, or they are caulked, prior to being ' In assigning the disputed work, the Employer granted it to members of Bricklayers who were to be assisted by employees represented by Laborers' International Union of North America, Local No 18 The Laborers did not participate in the instant hearing 212 NLRB No. 94 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD welded or bolted to the basic structure of the build- ing.' The Iron Workers primarily claims the rigging, hooking on, signaling, and landing functions involved in the erection of these prefabricated brick wall pan- els. C. The Contentions of the Parties The Employer argues that this dispute is properly before the Board on the basis of evidence showing that the Employer is not a party to any agreed-upon method of settling this matter which would be binding on the principals. In this connection, the Employer maintains that the 1972 interunion agreement be- tween the Iron Workers and the Bricklayers, alleged by the Iron Workers to be controlling, has been violat- ed by both of these Unions in the past and there is no convincing evidence to demonstrate that this agree- ment is operative in the Houston, Texas, area, the situs of the instant dispute. Also, the Employer notes that it has never consented to be bound by this agree- ment. On the merits of the dispute, the Employer argues that it assigned the work incidental to the in- stallation of these prefabricated wall panels to em- ployees represented by the Bricklayers because they have repeatedly shown that they can perform the work more safely, economically, and capably than those represented by Iron Workers. The Bricklayers position is essentially the same as that of the Employ- er. The Iron Workers argues that this dispute should not be resolved by the Board since all parties are bound by agreements providing machinery for the adjustment of jurisdictional disputes. Alternatively, the Iron Workers asserts that its members are able to perform the disputed work as efficiently and safely as those of Bricklayers, particularly as it encompasses the functions of rigging, hooking on, signaling, and landing which are involved in the installation of these preassembled brick wall panels. It also claims that an award in its favor is dictated by the 1962 agreement executed by International officials of the Iron Work- ers and Bricklayers apportioning between these Unions the work involved in the erection "of all types of pre-cast, pre-stressed concrete stone, or imitation stone, or other fabricated units when installed as wall panels by means of bolting and/or welding to structu- ral steel or concrete frame construction." tion of dispute pursuant to Section 10(k) of the Act, it must be convinced that there is reasonable cause to believe that Section 8(a)(4)(D) has been violated. The first issue to be resolved arises from the Iron Workers claim that there exists an agreed-upon proce- dure for resolving this dispute which is binding on all the parties. In this connection, the evidence shows that the Employer is an associate member of the Houston Chapter, Associated General Contractors of America, Inc. (AGC), and a party to the existing col- lective-bargaining agreement between AGC and the Iron Workers. This agreement does not expressly deli- neate the work jurisdiction of Iron Workers, but it does provide that in the event of jurisdictional dis- putes occurring between the signatories such contin- gencies shall be submitted either to the National Joint Board 4 or "to any agency established by law or mutu- al agreement to settle such disputes." The Iron Work- ers contends that the foregoing language in the agreement obligates the Employer to submit such dis- putes to the National Joint Board. However, in a prior proceeding, involving these same parties, we rejected this identical contention I pointing out that the afore- stated language of the agreement contemplates alter- native methods for the resolution of such disputes, including the submission of the dispute to this Agen- cy; and, thus, there is no mandatory requirement that disputes of thisnature be submitted to the National Joint Board. Accordingly, we find that there is no agreed-upon method for resolving this dispute which is binding on the parties, and hence, this dispute is properly before the Board. As already shown by the description of the back- ground of this dispute, the record shows that the Iron Workers demanded that the Employer reassign part of the work connected with the installation of prefab- ricated brick wall panels on the Sperry Rand Building job to Iron Workers. Following this demand, on De- cember 17, 18, and 19, 1973, the Respondent picketed thejobsite in an attempt to coerce compliance wiffits work demand. Accordingly, we find that there is reasonable cause to believe that violations of Section 8(a)(4)(D) have occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. Applicability of the Statute Before the Board may proceed with a determina- 3 The subject work is nearly identical to that involved in a prior dispute involving these same parties which was recently before this Board for resolu- tion, Iron Workers Union Local No. 84 (Smith Southern Corporation), 208 NLRB 208 (1974). E. Merits of "the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after duly 4 The present National Joint Board is denominated as the New Impartial Jurisdictional Disputes Board. 5Iron Workers Union Local No. 84 (Smith Southern Corporation), supra. IRON WORKERS UNION LOCAL NO. 84 723 considering all of the relevant factors.' As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based upon commonsense and experience in measuring the weight to be accord- ed various factors.? 1. Certifications The labor organizations involved in this case have not been certified by the Board as the collective-bar- gaining representative for a unit , or units, of the Employer's employees. 2. Collective-bargaining agreements The Employer is a member of the Mason Contrac- tors Association of America (MCA) and is bound by the current labor agreement in effect between MCA and the Bricklayers parent International Union. Arti- cle IV, paragraph c, of this agreement states: the Bricklayers and the Iron Workers Union. We have already decided in the previous case, involving these parties, that this interunion agreement does not serve to justify the Iron Workers 8(b)(4)(D) action in seek- ing to enforce its demand for the work in dispute.8 We find nothing in the instant record to justify any modi- fication of the Board's prior conclusion. No evidence has been adduced to show that the Employer ever consented to be bound by this agreement between these two labor organizations. It is now settled be- yond doubt that an employer picketed in the context of a jurisdictional dispute is a necessary party to the dispute for purposes of Section 10(k) of the Act .9 Not only does the evidence fail to establish that the Em- ployer is in any way bound by this interunion agree- ment, there is no showing that the agreement has generally been abided by in the Houston, Texas, area. Consequently, we find that the 1962 agreement be- tween the Iron Workers and Bricklayers is not a factor to which weight can be given in determining the mer- its of this dispute. . . . the Employers agree to assign [to the Bricklayers] .. . all work . . . including, but not limited to, all masonry (brick and concrete ma- sonry units made from any materials, stone, mar- ble, structural tile, terra cotta, prefabricated or pre-assembled components or panels, glass blocks, all forms of substitute materials thereto) utilized in all forms of construction, mainte- nance, repair and renovation. [Emphasis sup- plied.] As previously indicated, the Employer, through its membership in the Houston Chapter of the Associat- ed General Contractors of America, Inc., also has a collective-bargaining agreement with the Iron Work- ers. However, that agreement does not expressly de- lineate the work jurisdiction of the Iron Workers and, as a practical matter, no ironworkers are being carried on the Employer's payroll for this job. Accordingly, we conclude that the collective-bar- gaining agreement between the Employer and the Bricklayers favors an award of the disputed work to members of that Union. 3. The interunion agreement The Iron Workers, in claiming the disputed work, lays great stress upon an agreement executed in De- cember 1962 between the International presidents of 6 N L R B v Radio and Television Broadcasting Engineers Union, Local 1212, IBEW [Columbia Broadcasting System], 364 U S 573 (1961) 7 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 (1962) 4. Employer practice The Employer's consistent and unbroken practice has been to assign the disputed work to its own em- ployees represented for collective bargaining by the Bricklayers. It is also the Employer's practice to as- sign any auxiliary or related work to its employees represented by the Laborers Union, who serve to as- sist the Bricklayers. Accordingly, this factor favors an award to employees represented by the Bricklayers. 5. Area and industry practice The principal witness for the Employer, Turner Smith, Jr., president and majgrity stockholder, has been engaged in the masonry contracting industry for over 23 years and has performed construction work throughout many of the Southern States. He testified that he has never assigned any part of the duties of installing prefabricated, nonstructural masonry wall panels to the Iron Workers. Smith further testified that he believes that, as regards the Houston area, his subject work assignments to the Bricklayers are con- sistent with the prevailing area practice. On the other hand, C. Laird, Iron Workers business agent, during his testimony graphically identified, through the win- dows of the hearing room, various downtown Hous- ton buildings, either completed or under construction, where the work in dispute 10 assertedly was performed 8 208 N LRB 208, supra 9 N L R B. v Plasterers ' Local Union No 79, Operating Plasterers' and Cement Masons ' international Association [Southwestern Construction Compa- ny]. 404 U S 116 (1971) 10 The record is not clear as to whether mortar was used in pinioning the Con tin ued 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by composite crews of ironworkers and bricklayers, presumably in conformity with the 1962 agreement between the two Unions. However, there is counter- vailing record evidence which lead us to conclude that this 1962 agreement frequently does not control the work-assignment practices relating to precast wall panels in the Houston area." Consequently, on the basis of the equivocal state of the record concerning pertinent area work-assignment practices, we find that this factor is inconclusive as a determinant of the dispute. 6. Relative skills and efficiency of operation It is clear from the record that bricklayers possess all of the requisite skills for capably performing the disputed work of unloading, stockpiling, and erecting precast or preassembled brick or other masonry wall panels. As previously described, these panels are at- tached to the structure by means of a mortar base with clip angle and are welded or bolted at the top, and the bricklayers, according to the Employer, have always accomplished such work satisfactorily. As for the ironworkers, it also appears that they are capable of performing that part of the disputed work which they claim. Thus, we find that the factor of comparative skills between employees represented by each of these two Unions favors neither the Iron Workers nor the Bricklayers as an element in our determination of this jurisdictional dispute. According to the Employer, the firm regularly em- ploys between 40 to 50 bricklayers year round and considerably smaller numbers of laborers and operat- ing engineers on the same basis. The Employer does not employ any ironworkers. The record shows that since the Employer is a masonry subcontractor, the bricklayers, when not directly engaged in the disputed work of installing preassembled wall panels, are avail- able to execute other tasks that may be required by the contract. If the Employer were to utilize ironwork- ers in composite crews along with the bricklayers only for the purpose of erecting wall panels, company op- erations would be less efficient 12 because ironworkers would have to be called in for comparatively short periods of time. Accordingly, it appears from the record that the panels to the buildmgs pointed out by Laird ii See, e.g, Laird's testimony concerning Amtex Erectors and Riggers which apparently employs ironworkers exclusively to do all of the disputed work. Also, H. Brown, Local 7 Bricklayers business agent, testified that neither of these Local Unions faithfully complies with the 1962 agreement because of the absence of enforcement machinery . Consequently, it appears that these work assignments are determined by the rapport each Local Union has with various area employers , in addition to other ad hoc factors 12 Although the Iron Workers contends that the erection process would be completed with greater safety if ironworkers were involved , the record does not contain sufficient evidence to sustain this contention. assignment of the work in dispute to the Employer's employees represented by the Bricklayers, results in the most efficient method of carrying on the Employer's business. Conclusion Having considered all relevant portions of the rec- ord, we conclude that employees of the Employer represented by the Bricklayers are entitled to perform the disputed work. We arrive at this conclusion princi- pally because the Bricklayers has demonstrated to the Employer's satisfaction that the Employer' s assign- ment of the work to it has always resulted in its mem- bers performing this work skillfully and efficiently. Further, the Employer's assignment has not been shown to be at variance with industry practice in the area. Finally, the Employer's various labor agree- ments do not militate against the' Employer's right to award the disputed work to employees represented by the Bricklayers. Therefore, we shall determine the dis- pute before us by awarding the disputed work at the Employer's Sperry Rand Building job in Houston, Texas, to those employees represented by the Brick- layers, but not to that Union or its members. Our determination of dispute is limited to the particular controversy which gave rise to this proceeding. 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Smith Southern Corporation who are represented by Bricklayers, Masons and Plas- terers' International Union of America, AFL-CIO, Local No. 7, are entitled to perform the work of un- loading, stockpiling, and erection of preassembled brick wall panels of varying dimensions which are set in a mortar joint prior to being welded or bolted to the structure, at the Employer's Sperry Rand Building job, Houston, Texas. 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 repre- sented 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 IRON WORKERS UNION LOCAL NO. 84 725 Act, to assign the disputed work to its members, or of Smith Southern Corporation represented by Brick- employees represented by it, rather than to employees layers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7.