Boilermakers Local 744 (William Crane Service)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL- CIO, Local 744 and Williams Crane Service International Union of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, Local 17 and Williams Crane Service. Cases 8-CD-342 and 8- CD-341 September 20, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Williams Crane Service, herein called the Employer, alleging that the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 744, herein called the Boilermakers, and the Interna- tional Union of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local 17, herein called the Iron Workers, and collectively called the Unions, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to the employees represented by them rather than to the Employer's own employees. Pursuant to notice, a hearing was held before Hearing Officer Charles Z. Adamson on June 20 and 21, 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. 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 the Employer, a Maryland corporation with its principal place of business in Baltimore, Maryland, is engaged in the business of renting cranes and erecting and I The record revealed that on Aprl 5, 1977, extensive damage was done to the Employer's equipment including the firebombing of one of its cranes. 2 Respondents' representatives, while denying that their members picketed prior to April 5, 1977, admitted that the members of their 232 NLRB No. 16 dismantling production equipment and machinery. During the past year, the Employer shipped goods valued in excess of $50,000 from its Ohio jobsite directly to points outside the State of Ohio. The parties also stipulated, and we find, that the Employer is 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 jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Boilermakers and the Iron Workers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer began the work in dispute of dismantling a concrete storage plant on March 23, 1977. The Employer assigned this work to the unrepresented employees employed by it. On March 30, 1977, Lawrence McManamon, president of the Boilermakers, visited the jobsite and threatened to close the job down with a picket line if the Employer did not use boilermakers on the job. The Employer advised McManamon that it had no union members working on the job and intended to complete the job with its employees. On March 31, 1977, Thomas Palumbo, the business representative for the Iron Workers, visited the jobsite, demanded the work for his union members, and threatened to blow the Employer out of Cleveland if it continued to conduct the job on a nonunion basis. On April 1, 1977, pickets arrived at the jobsite. These incidents prompted the Employer to file 8(b)(4)(D) charges with the Cleveland Regional Office. On April 5, 1977, after several occurences of mass picketing and violence I at the jobsite, the Employer went into the Common Pleas Court of Cuyahoga County, Ohio, seeking an injunction to limit the picketing. At that proceeding, an injunction was issued which con- tained an agreement that the Boilermakers and Iron Workers would limit their picketing to three pickets at each of the Employer's two front gates and two pickets at the back gate and the Employer would drop the 8(b)(4)(D) charges against the Respondents which were pending. The Employer withdrew those charges. Thereafter, the picketing continued 2 in accordance with the restricted terms of the injunction respective unions participated in picketing at the jobsite after April 5, 1977, in accordance with the injunction, for the purpose of informing people in the area that the job was nonunion. The pickets carried signs which stated "Unfair to Boilermakers 744," but made no reference to the Iron Workers. 164 BOILERMAKERS, LOCAL 744 until the job was completed on April 19, 1977, at which time the Employer removed all its employees and equipment and returned to Baltimore, Mary- land. Upon returning to Baltimore, the Employer filed the instant charges against the Boilermakers and Iron Workers alleging violations of Section 8(b)(4)(D) based on the above incidents and work dispute. B. The Work in Dispute The work in dispute involves the dismantling of a concrete storage plant at 4401 West 130th Street, Cleveland, Ohio. C. The Contentions of the Parties The Boilermakers and Iron Workers contend that the disputed work, which their members perform together as a team, falls within their jurisdiction based on area practice, skill, and training, and on the fact that they have previously been awarded this work in decisions handed down by the National Joint Board for the Settlement of Disputes. They further contend that: (1) there is insufficient evidence to establish reasonable cause to believe that Section 8(b)(4)(D) has been violated and (2) the parties have agreed upon a method for the voluntary settlement of the dispute, relying on the Employer's agreement to withdraw the prior charges at the earlier state court proceeding for injunctive relief.3 The Employer contends that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there exists no voluntary method of settling the dispute inasmuch as its agreement in the state court to withdraw its earlier 8(b)(4)(D) charges is irrelevant to the proceeding now before the Board. The Employer also contends that the work should be assigned to the unrepresented employees employed by it on the basis of job assignment, preference, past practice, and the factors of skill, training, efficiency, and economy of operations. D. Applicability of the Statute With respect to (1) above, according to the testimony of Howard Williams, president of the Williams Crane Service, Lawrence McManamon, president of the Boilermakers, approached Williams Respondents' representatives were forbidden by the terms of the injunction from participating in the picketing, but continued to remain in close vicinity of the jobsite in order to direct and organize the pickets. 3 Neither the Boilerworkers nor the Iron Workers contends that the dispute in question is moot because the job is finished, and this issue was not litigated at the hearing. Furthermore, we note that the Employer performs the kind of work here in dispute throughout the country, and there is nothing to indicate that such a dispute will not arise in the future if the Employer again obtains similar work in the jurisdictional area of these two labor organizations. See, e.g., Local 581, International Brotherhood of at the jobsite on or about March 30, 1977, and, as noted above, threatened to close the job down with a picket line if Williams did not use members of the Boilermakers on the job. According to the testimony of Sal Scavone, the Employer's project supervisor, on the following day Thomas Palumbo, a representative of the Iron Workers, visited the jobsite and threat- ened to blow the Employer out of Cleveland if he continued to operate nonunion. As discussed, supra, the Unions organized the picketing which began April 1 and continued through April 19, 1977, when the job was completed. Both McManamon and Palumbo admit demanding the work for members of their respective unions, but deny making the threats attributed to them in furtherance of their demands.4 With respect to the testimonial conflict as to whether any threats were made, in a proceeding under Section 10(k) of the Act the Board is required only to find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated before proceeding to make a determination of the dispute out of which the alleged unfair labor practice has arisen. In doing so, we need not conclusively resolve conflicts in testimony.5 On the basis of the entire record, and as the picketing was admitted, we conclude that there is reasonable cause to believe that both the Boilermakers and the Iron Workers violated Section 8(b)(4)(D) of the Act by making threats and engaging in picketing with an object of forcing the Employer to assign the work in dispute to employees represented by them.6 With respect to (2) above, we find no merit in the Unions' claim that there has been or exists a voluntary settlement of the dispute. The court agreement between the parties leading to withdrawal of the prior charges filed under this Act, arising out of the same events, did not constitute an agreement or method to resolve the dispute within the meaning of Section 10(k) of the Act. At best it represented a quid pro quo between the parties allowing the Employer and his employees to proceed with the work with a minimum amount of interference from the Unions while permitting the latter to continue picketing in furtherance of their objectives without the threat of further and complete injunctive relief being obtained under Section 10(1) of the Act. In any event, the agreement did not and could not settle the question as to which group of employees the work in Electrical Workers, A FL-CIO (National Telephone and Signal Corporation). 223 NLRB 538, 539 (1976). Accordingly, for all the above reasons, we shall not treat this dispute as moot. 4 As for the picketing that followed these demands. the Unions contend that it was "informational" in nature. I International Brotherhood of Electrical Workers, Local Union 103 of Greater Boston (Maki Electric, Inc.), 227 NLRB 59 (1977). 6 Even if no threats were made, the picketing that commenced the day after the last demand for the work provides a firm basis for our finding of reasonable cause to believe that Sec. 8(bX4XD) has been violated. 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute should be awarded. To that question the agreement was wholly irrelevant. Thus, we find that there was, and is, no voluntary method of settlement between the parties which binds all of them to a determination of the work in dispute or a procedure by which the dispute may be resolved. 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.7 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.8 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements The Employer has no contracts with any labor organizations and has always conducted its business on a nonunion basis. Neither the Boilermakers nor the Iron Workers has any collective-bargaining agreement with the Employer. Therefore, this factor has no bearing on our determination of the dispute. 2. Employer and area practice The Employer introduced evidence through its project supervisor which establishes that since 1963 it has used its own employees, hired at its Baltimore place of business, to perform the kind of work here in dispute on this job and similar jobs throughout the country. It has not used employees represented by the Boilermakers or the Iron Workers for the work. Thus, the Employer's practice favors an award of the disputed work to the unrepresented employees employed by it. On the other hand, the Boilermakers and the Iron Workers perform the same work for other employers in the Cleveland area and take the position that since the job was being run in their geographical jurisdiction the work should be award- ed to their respective members. Thus, the factor of area practice seems to favor the award of the work to employees represented by the Boilermakers and the Iron Workers. Employer and area practice, therefore, appear to neutralize each other and thus we do not rely on these factors in awarding the work. 7 N.L.R.B. v. Radio d Television Broadcast Engineers Union, Local 1212. International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 (1961). Internalional Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). 3. Relative skills Both the unrepresented employees and the employ- ees represented by the Boilermakers and the Iron Workers possess the ability to do the work in dispute. Therefore, this factor favors neither group of employ- ees. 4. Economy and efficiency of operation The unrepresented employees hired by the Em- ployer perform work for the Employer other than that in dispute, such as operating cranes, driving trucks, burning, welding, and assembling structures. As a result, their versatility permits the Employer to perform both the disputed and other work tasks with one work force. There is no evidence, on the other hand, that employees represented by the Boilermak- ers and the Iron Workers could perform work other than that in dispute. Thus, if the work were assigned to these employees the Employer would be required to hire two work complements, one to do the disputed work and a second to perform the other work described above. The contrast in economy and efficiency achieved by awarding the work to the Employer's own unrepresented employees is there- fore substantial. We therefore find that this factor favors the award of the disputed work to the unrepresented employees employed by the Employer. 5. Employer's job assignment and preference The Employer assigned the complete job to its own employees when it arrived at the jobsite on or about March 21 and advised both Unions to this effect when they claimed the work within the following week. The Employer continues to prefer that the work be assigned to the unrepresented employees employed by it. Thus, this factor favors the award of the disputed work to the unrepresented employees employed by the Employer. 6. Joint Board determinations According to the Boilermakers president, Law- rence McManamon, his union has previously submit- ted a dispute such as this to the National Joint Board for the Settlement of Disputes and, in the decision that followed, this type of work was awarded to the Boilermakers and the Iron Workers.9 That decision, however, was not binding on the Employer which was not a party thereto. Nevertheless, since the decision awards the work to boilermakers and 9 McManamon also made it clear that ironworkers and boilermakers traditionally work together onjobs of this type. 166 BOILERMAKERS, LOCAL 744 ironworkers, this factor favors the award of the disputed work to such employees. However, it is outweighed by the factors described above which favor an award to the unrepresented employees employed by the Employer. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the unrepresented employees em- ployed by the Employer are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's preference and assignment and economy and efficiency of operations, all of which favor an award of the disputed work to the unrepresented employees employed by Williams. 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. I. Employees of Williams Crane Service, who are unrepresented, are entitled to perform the work of dismantling a concrete storage plant at 4401 W. 30th Street, Cleveland, Ohio. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 744, and International Union of Bridge, Structrual and Orna- mental Iron Workers, AFL-CIO, Local 17, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Williams Crane Service to assign the disputed work to employees represented by those labor organizations. 2. Within 10 days from the date of this Decision and Determination of Dispute, International Broth- erhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers and Helpers, AFL-CIO, Local 744, and International Union of Bridge, Structrual and Ornamental Iron Workers, AFL-CIO, Local 17, shall each notify the Regional Director for Region 8, 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 disputed work in a manner inconsistent with the above determination. 167