Iron Workers Local 21 (Lueder Construction Co.)

IRON WORKERS, LOCAL NO. 21 International Association of Bridge, Structural & Ornamental Iron Workers, Local No. 21 and Lueder Construction Company and Morford Ma- sonry Inc.' and Local No. 1140, Laborers' Interna- tional Union of North America. Case 17-CD-228 December 13, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Lueder Construction Company, alleging that International Association of Bridge, Structural & Ornamental Iron Workers, Local No. 21, herein called the Iron Workers or Respondent, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Morford Masonry Inc., the Employer, to assign certain work to its members rather than employees of Morford represented by Local No. 1140, Laborers' International Union of North America, herein called the Laborers. Pursuant to notice, a hearing was held before Hearing Officer David A. Nixon on July 26 and 27, 1977. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Respondent and Lueder filed briefs 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 proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that Lueder and Morford are Nebraska corporations with their principal places of business in Omaha, Nebraska. Lueder and Morford each annually purchases goods and materials from outside the State of Nebraska having a value in excess of $50,000. The parties also stipulated, and we find, that Lueder and Morford are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and 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. Inl. THE DISPUTE A. Background and Facts of the Dispute At all times material herein, Lueder has been the general contractor at a project involving the con- struction of the Target Store located at 130th and Center Streets, Omaha, Nebraska. Lueder subcon- tracted the masonry and concrete work at the project to Morford; and on or about May 24, 1977, in connection with the performance of that subcontract, Morford assigned the work of cutting, installing, and pulling wire mesh at the project to its employees who are members of the Laborers. Commencing on or about May 26, 1977, Iron Workers demanded that Morford reassign such work to individuals represent- ed by the Iron Workers. When Morford refused to make the reassignment, the Iron Workers picketed the project in support of its demand for the work and ironworkers employed by other contractors on the project engaged in a work stoppage. B. The Work in Dispute The work in dispute is the cutting, installing, and pulling of wire mesh at a construction project located at 130th and Center Streets in Omaha, Nebraska, as part of the construction of a structure called the Target store. C. The Contentions of the Parties Lueder contends that (1) the dispute is properly before the Board because there does not exist any method for the voluntary settlement of the instant jurisdictional dispute to which all necessary parties are bound; and (2) Morford's assignment of the disputed work was proper in light of the factors usually considered by the Board in these matters. The Iron Workers contends that the Board is without jurisdiction to determine the merits of the dispute under Section 10(k) of the Act since, as expressed more fully infra, the parties had agreed upon a method for its voluntary adjustment. The Iron Workers further contends that the Board should defer to a July 8, 1977, award by the Impartial Jurisdictional Disputes Board for the Construction I The name of the Employer appears as amended at the hearing. 233 NLRB No. 158 1139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industry, herein the Impartial Board, which con- ferred the work in dispute on the Iron Workers. Alternatively, in the event the dispute is properly before the Board, the Iron Workers urges that the work be awarded to employees represented by it on the basis of those factors normally considered by the Board in making such awards. At the hearing, representatives of Morford and the Laborers gave testimony in support of the assign- ment of the work to the laborers, but filed no briefs setting forth specific contentions. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to (1) above, it is clear that the Iron Workers picketed the project site and that such picketing was to protest Morford's assignment of the disputed work to its own employees who were represented by the Laborers. Accordingly, we find that reasonable cause exists to believe that the Iron Workers violated Section 8(b)(4)(D) of the Act.2 With respect to (2) above, the Iron Workers contends that a method for the voluntary adjustment of the dispute exists and that all of the necessary parties herein are bound thereto. As set forth, supra, on May 24, 1977, Morford assigned the work in dispute to the laborers. Shortly thereafter, the Iron Workers demanded that the work be assigned to its members, and, on May 26, 1977, ironworker employees began picketing the project in support of the demand for work. On June 7, 1977, pursuant to an agreement between Lueder, the Iron Workers, and the Laborers, the Iron Workers stopped the picketing and Lueder submitted the dispute to the Impartial Board for resolution. Morford was then informed that the dispute had been so submitted in consideration of the Iron Workers agreement to stop picketing. At no point did Morford participate in the agreement to submit the dispute to the Impartial Board. On July 5, 1977, Morford sent a telegram to the Impartial Board in which it disclaimed being bound by, or a party to, the submission.3 On July 8, 1977, the Impartial Board rendered a decision awarding the disputed work to the Iron Workers. 2 In a proceeding seeking injunctive relief under Sec. 10(l) of the Act, Hendrix v. The International Association of Bridge, Structural & Ornamental Workers, Local 21, Civil Case No. 7743-192 (D. Neb., June 28, 1977), the court found that there was reasonable cause to believe that the Iron Workers picketed the project to force Morford to reassign the work to members of its Union. We agree with that finding. The record reveals that Lueder is party to collec- tive-bargaining agreements with the Iron Workers and the Laborers. Both of these agreements contain clauses which obligate the signatories to submit work assignment disputes for resolution to the Impartial Board. In addition, Morford signed an agreement in which it agreed to be bound by the terms and provisions of a collective-bargaining agreement entered into by the Laborers and the Associated General Contractors of Omaha, et al.4 That agree- ment, however, was not entered into the record, and, thus, there is no evidence as to whether or not that agreement bound the signatories to submit disputes to the Impartial Board. Accordingly, we find no record evidence that Morford, the Employer that assigned the disputed work, was contractually bound to submit work assignment disputes to the Impartial Board. The Iron Workers also asserts that Morford's assignment of the work to laborers was based upon Lueder's insistence that it do so and therefore Lueder effectively made the work assignment. The record discloses that Lueder did "request" that Morford assign the work to laborers; however, the final decision to assign the work was made by Morford on the basis of past practice and economy and efficiency of operations. Morford testified that it assigned the work to its own employees, who were members of the Laborers, because they provided a more efficient work force. Finally, the Iron Workers claims that a subcontrac- tors' clause in the agreement between the Iron Workers and Lueder bound Morford to comply with awards made by the Impartial Board. That clause provided that Lueder subcontractors should assume all the terms and conditions of the Iron Workers- Lueder contract, if they perform work covered by that agreement. However, the contract between Lueder and Morford was not entered into the record; and, therefore, there is no evidence which establishes whether Morford agreed to be bound by the contract between Lueder and the Iron Workers. Lueder's contractual obligations cannot be conferred upon Morford, absent record evidence establishing that Morford had agreed to be bound by those obliga- tions. On the basis of the above facts, we find that Morford, the Employer and a necessary party, is not bound by decisions rendered by the Impartial Board and, thereby, no agreed-upon method for voluntary adjustment of the dispute involved herein exists. N.LR.B. v. Plasterers' Local Union No. 79, Operative 3 Morford acknowledges that it sent the disclaimer after being advised that such a disclaimer would be advantageous to the Laborers. 4 The Iron Workers also entered into evidence a 1974 contract between Morford and the Iron Workers. That contract, however, expired in June 1974. 1140 IRON WORKERS, LOCAL NO. 21 Plasterers' and Cement Masons' International Associa- tion, AFL-CIO [Texas Tile & Terrazzo Co.], 404 U.S. 116(1971). On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. 5 The Board has held that its determination in a jurisdictional dispute is an act of judgment based upon commonsense and experience reached by balancing those factors involved in a particular case.6 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements Morford has no current collective-bargaining agreements with either of the two labor organizations involved herein. However, all of its employees assigned to perform the disputed work are members of the Laborers; none are members of the Iron Workers. 2. Employer assignment and practice Morford has assigned the work in dispute, and prefers an assignment, to its employees who are represented by the Laborers. In the past Morford has always assigned the work to laborers. These factors, therefore, favor an assignment to Morford's employ- ees. 3. Industry and area practice Lueder, Morford, the Laborers, and the Iron Workers each adduced testimony regarding who has predominately performed the work at issue on projects located in the surrounding area. The evidence indicates that the practice is mixed between laborers and iron workers. We conclude that this factor does not favor either competing group. 4. Relative skills The record reveals that the work in question requires very little skill and that it can be performed equally well by either group. Accordingly, we N. L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL CIO [Columbia Broadcasting Sysreml, 364 U.S. 573 (1961). conclude that this factor favors neither claim for the work. 5. Economy and efficiency of operation Morford's laborers grade and prepare the soil for the concrete pour, cut and place the wire mesh on top of the soil, participate in the actual concrete pour by helping the finishers distribute the concrete, and pull the mesh to elevate it while the concrete is still wet. In addition, they also move supplies and materials around the project and are available for odd jobs and for the general cleanup of the project. Morford does not presently employ any iron workers and has no need on the project for any of the special skills they possess. As indicated previously, the placing, cutting, and pulling of the wire mesh does not require any special skills. In addition, the disputed work is often not one continuous process and does not involve much time on a daily basis, often only requiring 30 minutes of work during a day and rarely more than 3 hours. Further, the wire is often cut and placed on one day and pulled or elevated when the concrete is poured on the next day. If Morford were to utilize iron workers for the disputed work, they would be kept busy only for relatively short periods of time. On the other hand, when laborers are utilized, they are kept busy with the preparation and distribution of the concrete pour which constitutes the greater portion of their work, as well as with a variety of other jobs around the project. Accordingly, it is evident that the factors of economy and efficiency of operation favor awarding the disputed work to Morford's employees rather than to ironworkers. 6. Impartial Board determination Although we do not consider the Impartial Board award to the Iron Workers binding on Morford, we do consider it as a factor in determining the proper assignment of the disputed work. However, in view of all the circumstances, including the mixed practice of the industry, we are of the opinion that the Impartial Board award should not be given control- ling weight herein. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees of Morford Masonry Inc., who are represented by the Laborers, are entitled to perform the work in dispute. We reach this conclu- 6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402(1962). 1141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion relying on Morford's assignment and past practice of assigning the work to laborers and by the fact that such an assignment will result in a greater efficiency and economy of work operations. In making this determination, we are awarding the work in question to Morford's employees who are repre- sented by the Laborerers, but not to that Union or its members. The present determination 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Morford Masonry Inc., who are represented by Local No. 1140, Laborers' Interna- tional Union of North America, are entitled to perform the work of cutting, installing, and pulling wire mesh at the Target store construction project located at 130th and Center Streets in Omaha, Nebraska. 2. International Association of Bridge, Structural & Ornamental Iron Workers, Local No. 21, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Morford Masonry Inc. to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Bridge, Structural & Ornamental Iron Workers, Local No. 21, shall notify the Regional Director for Region 17, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(bX4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 1142